Petition — Giese v. United States

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“eupreme Court, U. &°

FILED

AUG 18 1979

MIQHAM SOAK IR CLERK

eer ee ee eee

In the Supreme Court

OF THE

United States

OctToBER TERM 1979

me 9-268

Frank Stearns (iksz,

Petitioner

vs.

Unirep States or AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Doron WEINBERG

1212 Market Street

San Francisco, Ca. 94102

Telephone: (415) 431-3472

Counsel for Petitioner

BOWNE-PERNAU WALSH © 1045 SANSOME ST. © S.F.,CA 94111 ° (418) 981-7882

SUBJECT INDEX

Page

eh oar) Ba ee a ah dis 9 vA oa aee a aO 1

ee Re 2 ee ere eer eee Pe 2

a are i i i eg gr 2

OR et Pe Te er nr ee 2

Sees Gee is GP WOE. cv ee ia 17

The First Amendment does not permit the use of the contents

of a commercially-published k of political writings as

evidence in a criminal trial of the intent, conduct or charac-

is Coie Or eee ee es eh oe ee 17

The record discloses that petitioner was convicted on the basis

of evidence of protected political expression in violation of

oe is cs Hint nn SE aA dwn 24

Ill

Extensive prosecutorial misconduct infringing petitioner’s rights

of confrontation and due process require reversal despite trial

Se I OP UND Vide ese ee bd as 31

ee ree cou atbaaeerucn 36

TABLE OF AUTHORITIES CITED

Cases

Page

Aptheker v. Secretary of State ( 1964) 378 U.S. 500 ........ 22, 23

Bachellar v. Maryland (1970) 397 U.S. 564............__ 28

Bantam Books v. Sullivan (1963) 372US.58..........__ 19

Berger v. United States (1935) 295 U.S. 78 ............ 14, 34, 35

Brandenburg v. Ohio (1969) 395 U.S. 444............_ 21

Bridges v. Wixon (1945) 326 U.S.1385........... 22

Bruton v. United States (1968) 391 US.123........._ 32

Chapman v. California (1967) 386 U.S.18............._.. 32

Cox v. Louisiana (1965) 3799U.S.6....................... 28

Donnelly v. DeChristoforo (1974) 416 U.S. 637 ....__ 32, 33, 34

Elfbrandt v. Russell (1966) 384 U.S.11.................._ 22

Frazier v. Cupp (1969) 394 U.S. 731 ..................... 33

Ginsberg v. New York (1968) 390 U.S.629.......... 19

Gradsky v. United States (5th Cir. 1967 ) 373 F.2d 706 ...... 34

Grayned v. City of Rockford (1972) 408 U.S.104.........__ 23

Gregory v. City of Chicago (1969) 394 US.111....... 28

Griswold v. Connecticut (1965) 381 U.S.479....... 19

Hall v. United States (5th Cir. 1969) 419 F.2d 582... 34

Harrington v. California (1969) 395 U.S.250..........__. 32

Healy v. James (1972) 408 US.169.......... 21, 22, 23

Herndon v. Lowry (1937) 301 U.S. 242... 21

Hess v. Indiana (1973) 414 U.S.105 .............. 21

Keyishian v. Board of Regents (1967) 385 U.S. 589 ........ 24, 27

Martin v. City of Struthers (1943) 319U.S.141........__ 19, 21

NAACP v, Button (1963) 371 U.S. 415.00... 24

Noto v. United States (1961) 367 U.S.290........... 21, 22

Pointer v. Texas (1965) 380 U.S.400.................... 32

Schneiderman v. United States (1942) 320U.S.118......... 22

Singer v. United States (1965) 380 U.S.24....... 33

Smith v. California (1959) 361 U.S.147....... 22, 23

Speiser v. Randall (1958) 357 U.S.513..........0.. 22, 23

Stanley v. Georgia (1969) 304 U.S.557......... 19, 20

Steele v. United States (5th Cir. 1955) 299 F.2d 628. —«™” 34

Street v. New York (1969) 394 U.S.576...... ss” 28, 29, 30

Stromberg v. California (1931) 283 U.S.359..... 28, 29

Thomas v. Collins (1945) 323 U.S.516.... ss” 30

Thornhill v. Alabama (1940) 310 U.S. 88...” 23

lli

TABLE OF AUTHORITIES CITED

CASES

Page

i 34

United States v. Drummond (2nd Cir. 1973) 481 F.2d 62 ....

United States v. Ludwig (10th Cir. 1974) 508 F.2d 140 ...... 34

United States v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150 35

United States v. Spock (Ist Cir. 1969) 416 F.2d 165 ........ =

Viereck v. United States (1943) 318 U.S. 236 ..............

Wagner v. United States (5th Cir. 1959) 263 F.2d 877 ...... :

Winters v. New York (1948) 333 U.S. 507 ..... 0.0... >

Yates v. United States (1957) 354 U.S. 298 ................

Constitutions

United States Constitution:

First Amendment ................. 2, 17, 18, 20, 22, 24, 25, 29, ye

NS 955655 SOV EN Meus s xtbevieds vat entae)

en oe ae an ne a re 2, 31, 32, 34

Rules

Federal Rules of Evidence: i

RS aids ic he No patna a Gare Tow gre ta ce h Ree wee -

ES eee ip ae a behead era te pee aR Th reer

Statute

28 U.S.C. Section 1254(1) ....... Or eel, Jo eee 2

Other Authorities

Emerson, The System of Freedom of Expression (1970) ... .24, 30

McCormick, Evidence (1954) § 144, p. 310 ................ 27

--~- --—

——> eee 7

In the Supreme Court

OF THE

United States

OcroBER TERM 1979

No.

FRANK STEARNS GIESE,

Petitioner

VS.

Unirtep States oF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

The Petitioner, Frank Stearns Giese, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit entered in this proceeding on May 2, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 597

F.2d 1170, and is appended hereto as Appendix A. That

opinion supercedes the Court’s prior opinion of February

16, 1978, since withdrawn from publication, which had ap-

peared at 569 F.2d 527 (1978), and which is appended

hereto as Appendix B. No opinion was rendered by the

District Court for the District of Oregon.

9 {

JURISDICTION

The judgment of the Court of Appeals was entered on

May 2, 1979, affirming Petitioner’s conviction dated Octo-

ber 21, 1974. The Court of Appeals denied a timely peti-

tion for rehearing on June 20, 1979. Thereafter, on July 6,

1979, Mr. Justice Stevens signed an order executing the

time for filing this petition for certiorari to and including

August 19, 1979. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

: QUESTIONS PRESENTED

1. Whether the First Amendment permits the contents

of a commercially-published book of political writings to be

used in a criminal trial as evidence of the intent, conduct

or character of the reader.

9 Whether the First Amendment permits a conviction

for conspiracy to commit politically-motivated crimes to be

based, in whole or in substantial part, on evidence of pro-

tected political expression.

8 Whether trial counsel’s failure to object insulates

from appellate review extensive instances of prosecutorial

misconduct, implicating the defendant’s Sixth Amendment

right to confrontation and Fifth Amendment right to due

process, in a conspiracy prosecution based on the uncorrob-

orated testimony of accomplices.

STATEMENT OF THE CASE

On February 28, 1974, Frank Stearns Giese, a 58-year-old

professor of French at Portland State University, was in-

dicted along with co-defendants Akers, Cronin, and Wallace

for his part in an alleged conspiracy to commit criminal

acts in expression of opposition to the Vietnam War. The

central acts of this conspiracy were the bombings of two

military recruiting centers in the City of Portland on Jan-

uary 2 and 4, 1973. Dr. Giese was charged with direct

involvement only in the January 4 bombing, Counts V

through VIII alleging various substantive offenses in con-

nection therewith.

In Count X, Dr. Giese, his co-defendants, and unindicted

co-conspirators McKeel, Stoner, MeSherry and Severin,

were charged with conspiracy,

_. . to commit and cause to be committed certain of-

fenses against the United States and other persons

and institutions by means of acts of violence, terror-

ism and disruption, including the use of explosives to

damage and destroy and attempt to damage and de-

stroy certain real and personal property, both public

and private, including the property described in Counts

II and VI [the recruiting centers] of this indictment

which are realleged and incorporated herein by

reference.

The trial commenced on September 30, 1974. Although

hundreds of items of physical evidence, including firearms,

explosives paraphernalia, explosives and firearms manuals,

and incriminating writings, were introduced against the co-

defendants, the case against Dr) Giese relied almost en-

tirely on the testimony of Robert McSherry and Lynn

Meyer, two admitted co-conspirators who testified that Dr.

Giese had driven the conspirators to the site of the January

4 bombing, as well as to the site of an earlier abortive at-

tempt to commit a non-federal crime; that he had partici-

pated in discussions following the January 2 bombing and

preceding that of January 4; and that he had provided the

group with various forms of material support, including

money.

As noted by Circuit Judge Hufstedler in her dissenting

opinion below, the testimony of both McSherry and Meyer

was “seriously impeached.” Both were shown to have “un-

savory records,” and both testified in the expectation of re-

ceiving reduced sentences. Meyer had a.long history of men-

tal illness and emotional instability. McSherry emerged as

a pivotal figure and primary actor in the entire conspiracy.

It was also revealed that McSherry had failed to implicate

Dr. Giese in the conspiracy in several detailed statements,

some under oath, given during the first months of his co-

operation, and that Dr. Giese was mentioned for the first

time immediately before McSherry obtained a substantial

bail reduction which facilitated his release from custody.

Although not corroborated by any physical evidence, the

case against Dr. Giese was bolstered from the outset by

extensive evidence and argument concerning his political

views, associations and activities, much of it based on testi-

mony regarding books he had read or provided to others.

The evidence presented in the government’s case-in-chief

established that Dr. Giese was the owner of the Radical

Education Project (REP) Bookstore, a gathering place for

political activists opposed to the Vietnam War, including a

number of persons later involved in the recruiting center

bombings. It further established that he volunteered his

1Appendix A, p. 67. Apart from the impeachment of their testi-

mony, McSherry and Meyer's account Dr. Giese’s role in the

January 4 bombing was contradicted by three witnesses who testi-

fied that he was at his farm well outside the City of Portland at the

time of the incident.

services as a lecturer and discussion leader at the Oregon

State Correctional Institute, under the auspices of the

prison chaplain.

Lynn Meyer, who was an inmate at OSCI at the time, tes-

tified that Giese discussed radicalism and radical politics

with the inmates, specifically in one instance comparing

the United States to Nazi Germany. Meyer stated that

Giese had informed the prisoners of the purpose of his

REP Bookstore, and offered to send “free Communist or

‘ Socialist literature” to the prisoners upon request. Over

repeated objection, Meyer testified that Dr. Giese had “ad-

voeated” a book by black prison activist George Jackson

which had the “topic of urban warfare in American cities”

(RT 950-54).

Numerous books, pamphlets, and manuals seized from

the residences of the conspirators were introduced by the

government and relied on as a major foundation of its

case-in-chief. Included among these were books such as

Socialism and Man, Socialist Revolution, Humanity, Free-

dom and Peace, Against Revistonism, and Venceremos,

which were alleged to be “part of the group’s library.”

One book in particular played a central role in the prose-

eution of Dr. Giese. Government Exhibit C-49, From the

Movement Toward Revolution (hereinafter From the

Movement), an anthology of songs, essays, and broadsides

from the various protest movements of the 1960’s, collected

by Stanford Professor Bruce Franklin and published by

Van Nostrand Reinhold Company, was seized from the

apartment occupied by Wallace, McKeel and Severin. Both

McSherry and Meyer testified to having seen the book in

the possession of various conspirators, and F.B.1. agents

testified that some 190 fingerprints appeared on the book,

most of them indistinguishable. Of the identifiable finger-

prints, nine belonged to Dr. Giese.*

Dr. Giese testified in his own defense. Some of his testi-

mony was designed to counter the implication in the

government’s case that his bookstore was a center for the

planning of terrorist activity and a distribution point for

manuals of instruction in such activity. He testified that

the bookstore neither carried, nor supplied, any of the

explosives and firearms manuals seized from the con-

spirators’ residences, and he produced a representative

sample of the kinds of books sold at the store.’ With

respect to From the Movement Dr. Giese testified that it

was not sold at his bookstore, although he himself had

purchased a copy at Portland’s largest commercial book-

store. He had read portions of this book, and believed he

still retained his copy at home.

Until this point in the trial, the book remained a physical

object bearing certain fingerprints. Though its title was

plainly before the jury, no reference had been made to its

content. However, in cross-examination of Dr. Giese, the

prosecutor focused directly on the book’s content. The

importance of the examination on this point requires that

it be reproduced in full:

*The testimony did not establish when the prints were placed on

the book. The F.B.I. expert could state only that fingerprints could

remain identifiable for as long as seven years.

®These books, listed at pp. 34-6 of the majority opinion (Appen-

dix A) were generally of eocialist” or “radical” political content,

similar to the other general political works introduced by the gov-

ernment, including particularly From the Movement.

(

Q. [by prosecutor Turner] Mr. Giese, I would like

to show you what has been marked, entered into evi-

dence as Government’s Exhibit C-49. Do you recognize

that book, sir?

A. [by Giese] Well, I don’t recognize the copy

necessarily. I recognize the—

Q. Not that particular copy but the book itself?

A. Yes. I recognize the book.

Q. Now, you testified that you have a copy of that

book?

A. I believe I still have a copy of the book.

Q. Can you identify the title for the Court and the

jury?

A. From the Movement Toward Revolution.

Q. And have you read the book?

A. I have read snatches from it.

Q. Would you like to, you heard Mr. Ranel’s testi-

mony that some nine of your fingerprints appeared

on various pages of this particular book?

A. Yes.

Q. Did you ever give this book or one like it to

any member—either of the people on trial or Mr.

Cronin, Wallace or Akers, Leslie McKeel, Max Sev-

erin, Robert McSherry, Lynn Bruce Meyer?

A. I don’t believe so.

Q. Now, would you turn, Mr. Giese, with me to

Roman numeral VIII at the beginning of the book,

that is the introduction of the book, the preface?

A. Okay. 8.

Q. I would like to ask you to read—sorry, I mean

13.

A. No. I believe it’s—is it 13, it’s XIII.

Q. Thank you.

A. It’s XIII.

MR. PAULSON [Giese’s lawyer]: Objection. It’s

hearsay and to my knowledge, he has not been charged

with having read books but with acts in this case of—

THE COURT: Overruled.

(By Mr. Turner) Directing your attention, Mr.

Giese, Roman numeral number 8?

A. You mean Roman numeral number 13?

Q. All right. Roman numeral number 13. Can you

read for us that paragraph “We are all involved in

the early stages”’—do you see that?

A. A paragraph beginning where?

Q. Right there—yes.

A. Maybe I am on the wrong page—it is 8.

THE COURT: Mr. Turner, we will have the bailiff

hand the book to you. It could be a different text or

edition.

Q. I don’t think so, Mr. Giese, we can move on to

something else.

Mr. Giese, would you look at Page 166, the last

paragraph on the lower right-hand side, I have got a

little check mark there?

A. Yes.

Q. Do you see that, sir?

A. Yes, I do.

Q. Could you read that particular paragraph for

us and continue on?

A. “We are sorry to”—

MR. TURNER: Mr. Giese, there is an objection.

THE COURT: Wait a minute. .

MR. PAULSON: May I have an objection?

THE COURT: You may have a continuing objec-

tion. Please proceed.

A. You want to read it aloud? “We are sorry to

hear that the townhouse forever destroyed your belief

that army [sic] struggle is the only real struggle. That

places us in a unique position because, as Che stated,

‘armed struggle is the only solution for people who

fight to free themselves’ and we have lost dearly-loved

comrades.”

Do you want me to go on?

Q. Yes, sir.

A. “Also probably every experienced revolutionary

has, but we realize that risks must be taken, some will

die, others will replace them or us.”

Q. Will you continue to the end of the paragraph.

A. Iam trying to make sense out of that sentence.

All right. “Others will replace them or us like people

rapping about ending racism, colonialism, sexism and

all of the other pigisms, exploitation and all that but

these things can only be ended by revolution and

revolution is in the final analysis armed struggle, revo-

lution is violence, revolution is war, revolution is blood-

shed. How long have different successful national

liberation fronts fought before they have won large

popular support.”

MR. TURNER: Thank you. Your Honor, subject to

our previous discussion, I have no further questions.

RT 1765-68 (emphasis added).

The passage which Dr. Giese was thus required to read

to the jury came from pages on which his fingerprints

had been found. The passage was written by unidentified

members of the Black Panther Party, however, and not by

Dr. Giese. There was no evidence that he had discussed

the contents of this book with any other person, nor, indeed,

that he had ever previously read it.

In argument, the book became the central element of the

government’s case against Dr. Giese, inasmuch as it was

the only piece of physical evidence in the case which could

10 iW

be tied to him. In opening, Assistant United States Attor- leaf through the rest of the book, because, as I indi-

ney Ransom told the jury: cated, this tells you—this is another how to do it for

In California as regards Mr. Giese, we have from the

Movement Toward Revolution, Mr. Giese has finger-

prints on this particular book. He told you that he had

one of these books himself, possibly, at home. He could

not recall how or if at all his fingerprints got on this

particular book which came out of the Debra Sue

Apartment in California.

This is an architectural manual, basically, of urban

warfare. Between this book and this book, you have the

makings for any sort of urban warfare that you would

like to participate in.

This is basically a conspiracy action, and I would like

to just very briefly take excerpts from pages which

contain Mr. Giese’s fingerprints. “A revolutionist Secs

death as a national phenomenon, must be ready to kill

or change conditions. Revolution is armed struggle,

violence, war, bloodshed and the duty of a revolution-

ary is to make revolution.

Let’s all try to pick targets with more care and plan-

ning. The object is to destroy the economy like bomb-

ing sites which will effect [sic] the economy the most,

rip off weapons and money, sniping attacks. Remem-

ber, in a revolution, one wins or dies. The stakes are

very high.

Do you recall the old words, “Ask what you can do

for your country,” destroy it, mentally, morally, psy-

chology [sic] and physically destroy it. And whatever

you do, do it good.

Now, those are just pages from this book but these

are two pages which contain the fingerprints of Frank

Giese. If you have an opportunity, you may want to

urban warfare.

This book and this book contain the fingerprints, be-

tween them, of all of the defendants in this case, as

well as the prints of Leslie McKeel and Max Severin.

RT 2050-51 (emphasis added).

In closing, Chief Prosecutor Turner forcefully reiterated

the point:

Did we make up the Frank Giese fingerprints on the

book From the Movement Towards Revolution? And

why is it that Giese’s friends, along with Severin and

Wallace and McKeel, are on that book?

They say that is a nice book; there is nothing wrong

with that book. As I recall the testimony from the

fingerprint man, fingerprints of Frank Giese were on

that book, nine and eight of them start at 166 and go

to the end of the book.

You read those pages where Frank Giese’s finger-

prints were. You read those pages. It talks about

bombing, sniper attacks. You read that book. You read

other pages throughout there. Look at page 51, for i-

stance, look at the preface. Throughout that book are

references to the very thing that these people did.

RT 2172 (emphasis added).

In addition to inviting the jury to judge Dr. Giese’s

purpose, motive and intent, and hence his participation in

the crimes charged, on the basis of books he allegedly read,

the prosecutors committed “extensive” other misconduct

in argument.‘ They characterized Dr. Giese as “sick,” “seri-

‘The characterization is that of dissenting Judge Hufstedler.

ously ill,” a “wolf in sheep’s clothing,” and a “very danger-

ous individual” (RT 2175, 2180). They cast aspersions on

defense counsel’s integrity and tactics (RT 2040, 2059,

2063, 2064, 2068, 2162, 2163-4), while attempting to bolster

the prosecution witnesses by cloaking them with the credi-

bility attached to the government itself (RT 2038-9, 2167-8).

The prosecutors frequently misstated the evidence (RT

2053-4, 2066, 2068-9, 2061-3), asserted their own indepen-

dent knowledge of the facts (2053-4, 2167), and invited the

jury to speculate about matters not in evidence (RT 2060-

61, 2164-65, 2173, 2176). And they repeatedly argued the

defense’s failure to produce evidence, urging the jury to

draw inferences of Dr. Giese’s guilt therefrom (RT 2038,

2039, 2060-61, 2164-65, 2173, 2175, 2177, 2178-80).

Most significantly, the prosecutor’s closing arguments

abridged Dr. Giese’s Sixth Amendment right to confron-

tation. Despite a ruling (RT 217) and a subsequent ad-

monition from the Court (RT 117-18) that a written con-

fession by co-defendant Wallace could not be used against

any other defendant, the prosecutors argued that confession

as “one of the more significant pieces of corroboration” of

the entire prosecution case, bolstering generally the credi-

bility of both McSherry and Meyer (RT 2043, 2172).

The prosecutors also focused on Dr. Giese’s failure to

produce unindicted co-conspirator Severin as a witness for

the defense. In the government’s case-in-chief there had

been testimony, over objection, that Severin, who did not

testify, had allegedly made statements implicating Dr.

Giese in the conspiracy. Severin’s statements were in turn

allegedly based on a conversation he had had with Giese.

Giese testified that he had made no such statements to

Severin.

In argument, the prosecutor noted that only two people

—Severin and Giese—could testify about the true content

of their conversation, and exhorted the jury as follows:

And now, if you were on trial and faced with a situa-

tion like this and having had a relationship that you

have had over the past, with Max Severin, wouldn’t

you call Max Severin to the witness stand if you were

not guilty. And second, if you had nothing to hide—

but Frank Stearn Giese has a lot to hide and hence the

reason he did not call Max Severin.

RT 2178-9

Then, referring to another conversation in which Dr. Giese

had denied participating, the prosecutor continued:

He denies such a conversation. He denies having been

present during the conversation. If it was true, why

didn’t he call Max Severin to tell you that?

RT 2179

And, as to still another disputed conversation:

Max Severin was there but did he call Max Severin?

He did not call Ma: Severin because this man has

something to hide. He has something to hide other-

wise he would have called the person who could have

conclusively shown, in fact, he was not present at such

conversation and he did not make an admission to the

Ira Keller affair.

RT 2180

The jury returned its verdict on October 16, 1974. Akers,

Cronin and Wallace were found guilty of all charges. Dr.

Giese, however, was convicted only of conspiracy, and was

acquitted of all counts charging direct participation in the

criminal conduct alleged. On October 21, 1974, Dr. Giese

was sentenced to a term of imprisonment for five years.

He was permitted to remain at liberty on bond pending

appeal, and he so remains pending this Court’s disposi-

tion of the instant petition.

Dr. Giese’s appeal was severed from that of his co-

defendants, whose convictions were all affirmed.* The panel

opinion on Dr. Giese’s appeal was initially filed on Febru-

ary 16, 1978. The majority opinion, by Judge Trask,

affirmed the conviction below. (The opinion appears as

Appendix B hereto.) With respect to the use of rom the

Movement, Judge Trask concluded that it was properly

introduced to show “the intent, purpose, aim and motives

of participants to the conspiracy,” and that it was proba-

tive on the “question of whether they subscribed to the

conspiracy’s illegal aims.” (Appendix B, p. 25; see, gener-

ally, Jd. at 25-28.) The majority also concluded that the

prosecutors had violated the principles set forth in Berger

v. United States (1935) 295 U.S. 78, but that, inasmuch

as the case against Dr. Giese was strong and his counsel

had failed to object to the primary instances of misconduct,

reversal was not mandated.

United States District Judge Sweigert, sitting by desig-

nation, filed a separate opinion concurring in the result

and generally in the reasoning of the majority opinion.

Judge Hufstedler, dissenting, believed reversal to be man-

5W’hile some of the contentions raised on Syme were relevant to

all appellants, the two which most concerned the Court of Appeals,

and which are presented here, affected only Dr. Giese.

dated by the improper use of the book’s contents as evi-

dence, and by the extent of prosecutorial misconduct.

A petition for rehearing with suggestion of appropri-

ateness of rehearing en bane was lodged with the Court

on March 13, 1978. On June 29, 1978, the Court ordered

the Petition filed, and withdrew the previously-issued

opinion from publication (see 569 F.2d 527 (1978)).

On May 2, 1979, the panel filed the amended opinion

(Appendix A). From the introductory statement preceding

the opinion, as well as the statement appended to the

opinion by Circuit Judge Ely, it appears that Petitioner’s

suggestion of rehearing en bane was taken up by one or

more of the active circuit judges not on the panel. Prior

to the resolution of this suggestion, however, it appears

that the majority withdrew its original opinion, and

amended it substantially. The most significant amend-

ments concerned the admission and use of the book From

the Movement.

In its amended opinion, the majority reserved the ques-

tion of whether the book had been properly used to show

“purpose, motive and intent,” (Appendix A, p. 27, n.15),

since it now concluded that the book was used for other

proper purposes: (1) to rebut Dr. Giese’s evidence of non-

violent character by demonstrating his violent character;

(2) to impeach his testimony about the nature of books

he owned, sold, or read; and (3) to attack his credibility by

demonstrating his demeanor while reading the passage in

question. The evidence of lectures he had given and books

he had recommended was held probative on the issue of

his leadership role vis-a-vis other conspirators. (See,

generally, Appendix A, pp. 26-50.) The assignments of

prosecutorial misconduct were again acknowledged as sub-

stantial, but non-prejudicial. (Appendix A, pp. 60-62.)

Judge Sweigert filed a concurring opinion (Appendix A,

pp. 63-5) accepting generally the majority analysis.

Judge Hufstedler again dissented on both grounds.

The dissent establishes that the majority’s rationale for

the use made of the contents of From the Movement is

without any factual support in the record,° and is plainly

contradicted by the prosecution’s explicit reliance on the

book in argument to demonstrate Dr. Giese’s purpose,

motive, and intent, and his subsequent conduct. The dis-

sent further finds the First Amendment violation un-

avoidable under any construction of the record.

Judge Hufstedler’s opinion is, in Petitioner’s view,

thorough in its analysis, accurate in its rendition of the

record, and persuasive in its argument and conclusions.

Petitioner accordingly adopts the dissenting opinion in its

entirety and commends it to this Court, together with the

revealing extraordinary statement issued by Judge Ely

(Appendix A, p. 94), as establishing the basis upon which

certiorari should be granted.

®As are the asserted —_— of waiver and invited error by Peti-

tioner ( Appendix A, p. 67).

REASONS FOR GRANTING THE WRIT

THE FIRST AMENDMENT DOES NOT PERMIT THE

USE OF THE CONTENTS OF A COMMERCIALLY-

PUBLISHED BOOK OF POLITICAL WRITINGS AS

EVIDENCE IN A CRIMINAL TRIAL OF THE IN-

TENT, CONDUCT OR CHARACTER OF THE

READER.

This petition presents an issue which lies at the heart of

the First Amendment guarantee of freedom of speech:

whether the government may inquire into the contents of a

criminal defendant’s library and base a criminal prosecu-

tion, in whole or in substantial part, on the evidence

thereof.

Petitioner was convicted of conspiracy to commit crimes

of political motive, but was acquitted of the commission

of the crimes themselves, following a trial in which the

primary piece of physical evidence relied on by the prose-

eution to bolster the case against him was a book of

rhetorical, often inflammatory, political writings, which

he had not written but merely read. Over objection he

was compelled to read to the jury a graphic passage

arguing abstractly the need for violence to achieve social

change, on the sole ground that his fingerprint appeared

on the same page. And in argument, the prosecutors

vigorously urged the jury to find that Petitioner and his

co-defendants had acted jointly in accordance with the

ideas expressed “throughout” the book, on the sole ground

that they had each read the book—presumably individually

—at some unspecified prior time.

This use made by the government of the contents of a

commercially-published book is as unprecedented as it is

pernicious. The impropriety of such an imposition on the

individual’s right to communicate and to receive communi-

cation is plainly established by this Court’s historic inter-

pretation of the scope of fundamental First Amendment

freedoms. Yet it does not appear that the issue presented

here has ever been addressed by this Court, nor has the

Court articulated fully the nature and extent of the free-

dom to receive communications as a concomitant of the

right to communicate. For these reasons, and because the

opinion of the Court of Appeals herein constitutes a

potential “impediment to the intellectual growth of our

citizenry’,” (statement of Circuit Judge Ely upon the

denial of rehearing en bane below, Appendix A, p. 94,

597 F.2d 1170, 1213), Petitioner respectfully urges that

certiorari be granted herein.

A number of decisions of this Court have recognized the

existence of a right to receive information, either as an

‘Although the panel majority ap age to rest its holding on

narrow —-. out of respect for the sensitivity of the rights in-

volved, the opinion on its own terms explicitly approves the use of

First Amendment material for impermissible, and fundamentally

dangerous purposes. The majority upholds use of the contents of a

book to establish the violent character of the reader, and holds that

a witness’ credibility may be tested by compelling him to read for

the jury words written by a stranger. The opinion also establishes

that the admissibility of evidence of political expression is to be

measured by the “balancing” test of Fed.R.Evid. 403, without re-

gard to the constitutional prohibition incorporated in Fed.R.Evid.

Beyond this, the majority opinion must be read—and will be

read by future courts and prosecutors—in light of the facts of the

case, as extensively set out in the dissent and the footnotes to the

majority opinion. In this context, poy in view of the prose-

cutors’ argument, the case can only be read as approving—at least

in some circumstances—the use of books to prove intent and sub-

sequent conduct.

indispensible corollary of the right to disseminate informa-

tion (Martin v. City of Struthers (1943) 319 U.S. 141, 143;

Cf., Winters v. New York (1948) 333 U.S. 507, 509-10; Ban-

tam Books v. Sullivan (1963) 372 U.S. 58, 65 n.6), or as an

element of the individual’s freedom of thought (Griswold

v. Connecticut (1965) 381 U.S. 479, 482-83; Ginsberg v.

New York (1968) 390 U.S. 629, 649 (Stewart, J., concur-

ring) ).

The double aspect of this right, and the two distinct

though unrelated interests it protects, was recognized in

Stanley v. Georgia (1969) 394 U.S. 557, in which the Court

declared unconstitutional a statute making illegal the mere

possession of obscene material by an individual within his

own home. The statute was found to offend not only “the

right to receive ideas, regardless of their social worth,” but

the additional fundamental “right to be free, except in very

limited circumstances, from unwanted governmental in-

trusions into one’s privacy.” 394 U.S. at 564.

The use made at Petitioner’s trial below of the contents

of a book which he merely read also implicates both as-

pects of the guarantee (which in the context of this case

may be called “the right to read”) for Petitioner here, just

as the petitioner in Stanley v. Georgia was “asserting the

right to be free from state inquiry into the contents of his

library.” 394 U.S. at 565. While it is true that the statute

involved in Stanley v. Georgia made possession and read-

ing itself a crime, whereas the prosecution herein merely

employed private possession and reading as evidence of the

commission of crime, the practical effect was the same.

A fair review of the record discloses that the contents of

From the Movement may have been the dispositive element

leading to Petitioner’s conviction of conspiracy despite his

acquittal of all substantive charges. Thus he may have

been convicted for the possession and reading of a book

the content of which was distasteful to the prosecution

and the jury. Yet,

If the First Amendment means anything, it means

that a state has no business telling a man, sitting alone

in his own house, what books he may read or what films

he may watch. Our whole constitutional heritage rebels

at the thought of giving government the power to

control men’s minds.

394 U.S. at 565.

Here, no less than in Stanley, the use of the book evidence

violated Petitioner’s right to privacy and freedom of his

own thoughts and ideas.

But it is in its impact upon the other aspect of the “right

to read” that the evidence of book-reading here presents

a question even more significant, and a danger potentially

greater, than that confronted in Stanley. This difference

grows out of the nature of the writings involved. In Stan-

ley, there was no dispute that the material possessed was

obscene under any relevant standard (394 U.S. at 559 n.2),

and thus properly subject to control in its dissemination

(Id. at 561). But the material relied upon by the prosecu-

tion here was political expression, the dissemination of

which is indisputably protected by the First Amendment.

From the Movement Toward Revolution is an anthology

of political writings, distributed by a large commercial pub-

lishing house, with “renewed dedication to the concept of a

wide open assemblage of completely unretouched docu-

ments of national significance,” at a time “when the lati-

tude of open dissent is being reexamined once again... .”

Lehi + ne: Peay

(Publisher’s message, frontispiece.) Included among its

contents are songs and documents, some hortatory and

others narrative, concerning various aspects of the radical

political movements of the 1960’s. Violence or criminal

conduct is discussed in only a few excerpts; always, as in

the excerpt Petitioner was compelled to read, in the ab-

stract, focusing on the necessity or desirability of violent

methods of change, rather than inciting or advising the

commission of immediate acts. Beyond any doubt, the de-

cisions of this Court establish an absolute constitutional

protection for the publication and dissemination of these

excerpts, individually or in combination. Herndon v. Lowry

(1937) 301 U.S. 242; Yates v. United States (1957) 354 U.S.

298; Noto v. United States (1961) 367 U.S. 290; Branden-

burg v. Ohio (1969) 395 U.S. 444; Healy v. James ( 1972)

408 U.S. 169; Hess v. Indiana (1973) 414 U.S. 105.

The freedom of the authors and publisher to distribute

these materials “necessarily protects [Petitioner’s] right

to receive” them (Martin v. City of Struthers, supra, 319

U.S. at 143), for without protection of the “right to read”

unpopular materials there can be no effective safeguard

of the right to publish them.

The decision of the Court of Appeals here, however, not

only fails to protect that right, but places an untenable

burden on its exercise by permitting evidence in a criminal

ease to be founded on the contents of a controversial or

inflammatory book merely because the defendant has read

it. Such a doctrine can have no effect other than to discour-

age the reading of controversial or rhetorical works. In-

tended or not, the inexorable result will be the elimination

of the controversial material itself.

To paraphrase, only slightly, this Court’s admonition

in Smith v. California (1959) 361 U.S. 147, 154: the rule

implicitly adopted by the Court of Appeals assigning

liability to the reader for the words of the author “would

tend to restrict the public’s access to forms of the printed

word which the State could not constitutionally suppress.

The [reader’s] self-censorship, compelled by the State,

would be censorship affecting the whole public, hardly less

virulent for being privately administered. Through it the

distribution of all books, both [protected and unprotected],

would be impeded.” The right of advocacy so often and

so carefully safeguarded by this Court cannot long survive

if criminal liability is the price paid by the reader.*

‘The attribution to the reader of thoughts expressed by an author

also plainly violates the proscription against “guilt by association”

which rests on both First Amendment and due process considera-

tions.

In Schneiderman v. United States (1942) 320 U.S. 118, the Court

recognized, and the government conceded, that it is normally “un-

sound to impute to members of an organization the views expressed

in organization documents (320 U.S. at 147; and at 154). See also,

| Bridges v. Wixon (1945) 326 U.S. 135, 147; Elfbrandt v. Russell

(1966) 384 U.S. 11; Noto v. United States, supra, 367 U.S. at 299-

30; Healy v. James, supra, at 186.

Indeed, in Aptheker v. Secretary of State (1964) 378 U.S. 500,

the Court rejected a rule imputing the beliefs of a political party

to each of its members (a position again conceded by the govern-

ment; see 378 U.S. at 515 n.13) even though the particular com-

plainants were the party chairman and its chief theoretician.

And in United States v. Spock (1st Cir. 1969) 416 F.2d 165, 178,

the Court declined to find that one of the ers of a document

necessarily adhered to and intended to act on its illegal aspects.

Clearly, these principles prohibit the imputation of the author’s

views to the mere reader of a book.

Nor is it a sufficient answer to say, as does the majority (Appen-

dix A, p. 46), that Petitioner could have denied adherence to those

views. In the area of First Amendment freedoms, the burden of

proof must remain with the Government. Speiser v. Randall (1958)

357 U.S. 513, 526.

It is no answer to this concern that the evidence of read-

ing here was not the sole basis of the prosecution, but

merely added to other more direct and unobjectionable

evidence. In the first place, as noted above, on the record

of this case it is at least possible, if not probable, that

Petitioner’s conviction for conspiracy, by the same jury

which evidently discounted the “direct” evidence of crim-

inal acts, was the result of this evidence. Indeed, both the

majority and dissenting opinions below recognize that this

evidence was prejudicial, and not harmless.

Moreover, even if the impact on Petitioner were less

clear, where the potential inhibition of essential First

Amendment rights is involved, this Court has not hesitated

to take into account possible applications of a rule in other

factual contexts besides that at bar. Thornhill v. Alabama

(1940) 310 U.S. 88, 97-98; Aptheker v. Secretary of State

(1964) 378 U.S. 500, 516. Thus, this Court’s

. . . decisions furnish examples of legal devices and

doctrines, in most applications consistent with the

Constitution, which cannot be applied in settings where

they have the collateral effect of inhibiting the free-

dom of expression by making the individual the more

reluctant to exercise it.

Smith v. California, supra, 361 U.S. at 150-51.

See also, Speiser v. Randall, (1958) 357 U.S. 513; Grayned

v. City of Rockford (1972) 408 U.S. 104, 109; Healy v.

James, supra, 408 U.S. at 183.

It is manifest that the use of books as evidence in crim-

inal cases is one such “device” which will inevitably have

the effect of inhibiting freedom of expression. The fear that

the innocent but controversial contents of one’s private li-

brary may become evidence in some unimagined future

prosecution is only marginally less chilling of the exercise

of First Amendment rights than the fear of prosecution for

the contents alone. Cf., N.A.A.C.P. v. Button (1963) 371

U.S. 415, 433; Keyishian v. Board of Regents (1967) 385

U.S. 589. This threat, never previously encompassed by the

rulings of this Court or the Courts of Appeals, emerges

unmistakably from the opinion of the Ninth Circuit herein.

The compulsion it may foreseeably engender in individuals

to restrict their reading material, and hence their unin-

hibited exposure to ideas, is plainly antithetical to the fun-

damental ideals embodied in the First Amendment.

THE RECORD DISCLOSES THAT PETITIONER WAS

CONVICTED ON THE BASIS OF EVIDENCE OF PRO-

TECTED POLITICAL EXPRESSION IN VIOLATION

OF THE FIRST AMENDMENT.

Professor Emerson has observed that the Supreme Court

has never really addressed itself: to the issue of “how far

the government, in seeking to punish a crime of action,

can push its inquiry back into inchoate stages of action

which consist of expression. The issue arises . . . when the

government seeks to use expression either as evidence that

the subsequent action took place or as evidence of the

state of mind of the person who engaged in the action.

Plainly, there must be some limits if the system of free-

dom of expression is to remain intact.” Emerson, The

System of Freedom of Expression, 405 (1970).

The instant petition presents a record which requires

consideration and resolution of this important question.

Here, Dr. Giese was convicted of conspiracy to commit

politically-motivated acts of violence by a jury which did

not credit testimony that he had directly participated in

those acts. Yet the only evidence introduced against him

apart from this testimony was evidence of political

expression clearly within the ambit of First Amendment

protection.

In addition to the dominant role played by evidence of

ideas imputed to Dr. Giese from the pages of From the

Movement, the prosecution introduced and relied on the

following evidence of political expression:

—Dr. Giese’s ownership of a “radical” bookstore,

at which anti-war activists, including several of the

alleged conspirators, congregated and discussed political

strategies ;

—The dissemination by that bookstore of “free Socialist

and Communist literature” to prisoners;

—Dr. Giese’s leadership of discussion groups at the

state prison in which “radicalism” and “black liberation”

were discussed, and in which he apparently compared the

United States to Nazi Germany; and,

—Dr. Giese’s “advocacy” of a book by George Jackson

which had the “topic” of “urban warfare in American

cities,” and his furnishing to one of the conspirators of a

book about “urban warfare.’”

®As set out in the dissent below, evidence eg! books and

book ownership played a central role in the trial. us, for ex-

ample, the prosecution urged as evidence of Petitioner’s involve-

ment in the conspiracy the fact that he owned a weapon—pur-

chased outside the time-frame of the conspiracy—which was of the

type recommended in a manual found in the residence of several

conspirators.

Each of these matters was reiterated in the cross-

examination of Dr. Giese, during which he was also asked

whether he had ever discussed “revolution, Marxism,

arson, any activities of that nature” with unindicted

co-conspirator Severin. And, as noted, Dr. Giese’s political

views and associations were heavily emphasized by the

prosecutors in closing argument as evidence of his involve-

ment in the conspiracy.

In view of this significant evidence of apparently pro-

tected expression, the trial court was obliged to guard

against the possibility of conviction on the ground of such

expression. Indeed, the Court of Appeals explicitly recog-

nized the need for instructions foreclosing the jury from

convicting Dr. Giese “on the basis of legal conduct, such as

peaceful opposition to the Vietnam War, protected by the

First Amendment.” (Appendix A, pp. 58-9.) Petitioner

would add that his right to discuss and even advocate the

necessity of violence in the abstract—as he allegedly did—

should also have been vouchsafed.

Whatever the nature of the rights requiring protection,

however, it is manifest that none was provided. The Court

refused the defense’s proferred instructions concerning

mere knowledge and association in the context of conspir-

acy prosecutions, and failed even to allude to the rights

of expression and advocacy. The jury was thus left to

weigh the evidence as dictated by its predilections and

prejudices.

The resultant verdict leaves little doubt that evidence

of Dr. Giese’s protected expression formed a substantial

—perhaps major—part of the basis for his conviction. It is

necessary to look no further than the majority opinion of

the Court of Appeals for proof of this assertion. In uphold-

ing the introduction of evidence, over objection, that Dr.

Giese had “advocated” a book on urban warfare, the Court

finds it admissible on two grounds: First, because it was

an “admission” (Appendix A, p. 49), and, second, because

it also

.. . tended to show that Giese exercised a leadership

role vis-a-vis the other conspirators. By conducting

discussions on a topic of mutual interest—radical poli-

tics—and by furnishing or recommending books on

that subject, Giese attracted Meyer (and perhaps his

fellow prisoners Severin and Wallace) to the group

at the bookstore which eventually formed the conspir-

acy.

Appendix A, pp. 49-50.

This argument is its own best refutation. By holding that

it was an “admission,” the majority holds that the recom-

mendation of a book is an “acknowledgment of a fact tend-

ing to prove guilt” (McCormick, Evidence (1954) § 144, p.

310).*° And in finding Dr. Giese’s role as lecturer on politi-

cal topics, including violence as a tactic, to be significant

evidence establishing his role in the conspiracy, the ma-

jority has not merely condoned, but embraced the use of

protected expression as essential evidence of guilt.

The reliance by the Court of Appeals on evidence of ex-

pression to supply such impori «ant elements of proof leaves

1°Compare Keyishian v. Board of Regents, supra, 385 U.S. at 601:

“For example, oe the university librarian who recommends the

reading of such material thereby ‘advocate . . . the . . . propriety

of adopting the doctrine contained therein.’?” pepereny, the

Court’s rhetorical question was taken as an invitation by the prose-

cution herein.

little doubt that the evidence was central to the jury’s

consideration as well.

Of this there can, of course, be no certainty. But what

is more important is that there can be no certainty of the

contrary on the present record. Thus, the instant case falls

within the rule of Stromberg v. California (1931) 283 U.S.

359, that a conviction supported by a record which does not

substantially exclude the possibility that it was based on

constitutionally-prohibited rules or evidence must be set

aside. See also, Cox v. Louisiana (1965) 379 U.S. 6, 31-2;

Bachellar v. Maryland (1970) 397 U.S. 564, 571; and

Gregory v. City of Chicago (1969) 394 U.S, 111, 113."

Particularly instructive in the application of the Strom-

berg rule is this Court’s decision in Street v. New York

(1969) 394 U.S. 576. Street was charged with violation of a

statute making it unlawful to “mutilate ... or cast contempt

upon by either words or act” any American flag. The

evidence showed that, shortly after he learned of the \

shooting in Mississippi of civil rights leader James Mere-

dith, Street publicly burned an American flag, and declared,

“if they did that to Meredith, we don’t need an American

flag.” He was tried by a judge, sitting without a jury, on

an Information charging that he had set fire to the flag and

uttered the reported words. He was convicted by general

verdict.

The Supreme Court reversed. Finding that the words

attributed to Street were themselves constitutionally pro-

"Finally, since the trial judge’s charge permitted the jury to con-

vict for acts clearly entitled to First Amendment protection, Strom-

berg v. California [supra] independently requires reversal of these

convictions.” 394 U.S. at 113.

tected and could not form the basis for conviction, the Court

concluded that its review of the record left it “unable to say

with certainty that [Street’s] words were not an inde-

pendent cause of his conviction.” 394 U.S. at 589. The Court

reasoned that the language of the statute would have per-

mitted conviction on the ground of Street’s remark alone,

and noted that the general verdict did not specify the

ground relied upon, thus leaving open the possibility that

conviction was based on the expression. This was true

despite the fact, stressed by the dissent, that the uncontro-

verted proof of Street’s act of flag-burning provided a

fully-sufficient and constitutionally permissible basis for

conviction. Given the failure of the record to “eliminate the

possibility that Street was convicted on the basis of his

expression” (394 U.S. at 590) the Court held that the

doctrine of Stromberg v. California required the conviction

to be set aside.

The instant case falls considerably more readily within

the contours of the Stromberg rule. (Cf., Street v. New

York, supra, 394 U.S. at 594; Warren, C.J., dissenting.)

Inasmuch as the jury acquitted Dr. Giese of substantive

crimes despite the testimony of McSherry and Meyer, there

is substantial doubt here, where there was sone in Street,

of the existence of a fully-sufficient and constitutionally-

permissible evidentiary basis for Dr. Giese’s conviction of

conspiracy. Conversely, there exists here a more substan-

tial possibility that he was convicted solely on the basis

of protected expression.

But it is not necessary to adopt this view of the record

to recognize the essential First Amendment issue pre-

sented. Although Dr. Giese may not have been convicted

on the basis of expression alone, it is virtually indisputable

—in the light of the evidence, the argument, and the ab-

sence of limiting instructions—that he was convicted on

the basis of both his expression and his action.

The constitutional infirmity of such a conviction was

recognized by the Street court. Relying on the reasoning of

Thomas v. Collins (1945) 323 U.S. 516, the Court asserted

that it would be “bound to reverse if [Street’s] conviction

could have been based upon both his words and his act”

394 U.S. at 587. This statement was, however, plainly dic-

tum. Moreover, although it articulates a fundamental con-

stitutional rule, it offers little guidance for the resolution

of difficult cases involving the more complex or more subtle

interplay of action and expression.

The instant case presents the necessity, and the oppor-

tunity, for the articulation of constitutional limitations

on the use in criminal cases of evidence of protected First

Amendment activity. Without such limitations from this

Court, the opinion of the Court of Appeals herein will

signal the opening of new possibilities for the exploitation

of this evidence. The result of such an opening is as fore-

seeable as it is unwelcome,

[fJor expression may be seriously inhibited when the

speaker knows that what he says can be used against

him at a later time if some unforeseen action ensues,

can be taken into account by a jury in determining his

state of mind in performing a subsequent act, or can

perhaps be the decisive factor in a jury’s general ver-

dict against him.

Emerson, supra, at 405.

ee ee ee

III

EXTENSIVE PROSECUTORIAL MISCONDUCT IN-

FRINGING PETITIONER’S RIGHTS OF CONFRON-

TATION AND DUE PROCESS REQUIRE REVERSAL

DESPITE TRIAL COUNSEL'S FAILURE TO OBJECT.

The inflammatory argument founded upon evidence of

constitutionally protected expression was only a part of

the extensive misconduct engaged in by the prosecution.

The majority opinion below concludes that “the prosecu-

tion did, in fact, make improper statements on several

occasions,” specifically identifying four categories—com-

prising at least ten independent instances—of impropriety.

And dissenting Judge Hufstedler found the misconduct to

be so “extensive” and “pernicious” as to constitute plain

error. The majority’s conclusion that reversal is not man-

dated, however, because of trial counsel’s failure to object

and the strength of the case against Dr. Giese, raises two

questions which merit this Court’s consideration: (1)

whether prosecutorial exploitation in argument of the pur-

ported testimony of non-testifying witnesses violates the

defendant’s right of confrontation and, if so, the standards

to be employed on review of such error; and (2) whether

the failure of defendant’s counsel to object insulates from

judicial control a pattern of repeated misconduct by the

prosecution in a case based essentiallv on uncorroborated

accomplice testimony.

Two separate aspects of the prosecutors’ final arguments

implicated Dr. Giese’s Sixth Amendment right to confront

the witnesses against him: the use of a confession by non-

testifying co-defendant Wallace, and the repeated impli-

cation that non-testifving unindicted co-conspirator Sever-

in’s testimony would be inculpatory of Dr. Giese.

The Court of Appeals majority recognized that the

exploitation of the Wallace confession as “one of the more

significant pieces of corrobation” of the government’s case

against Dr. Giese was improper. But the Court concluded

that this error “did not affect substantial rights” in that

it “served only as corroborative evidence against Giese,”

and the case against him remained “convincing,” |

This holding is fundamentally erroneous, not because it

reaches an incorrect decision, but because it applies an

incorrect constitutional standard. The Court’s conclusion

that the improper use of the Wallace confession did not

affect substantial rights is untenable. If, as the Court con-

cedes, the exploitation of this confession was error, it was

— only because it violated Dr. Giese’s Sixth illest

right to confrontation. See Pointer v. Texas (1965) 380

—_ 400. This is indisputably a “substantia] right,” Bruton

v. United States ( 1968) 391 U.S. 123; Harrington v. Cali-

fornia (1969) 395 U.S. 250; cf., Donnelly v, DeChristoforo

( 1974) 416 U.S. 637, 643, the violation of which may not be

discounted on the ground of counsel’s failure to object, or

minimized because it merely corroborated other ilies

The proper test for assessing the impact of such a federal

constitutional error requires instead a determination

whether the error was harmless beyond a reasonable doubt

Chapman v. California (1967) 386 U.S. 18, 24. If the dice

is unable to declare the error harmless by this standard

the conviction must be reversed. The harmlessness of iach

error is a established merely by the conclusion that the

prosecution evidence was otherwise “overwhelming”

(Chapman v. California, supra, 386 U.S. at 23), much less

— it was “convincing.” The apparent inability of the

majority below to declare the error harmless beyond a

PREMIO pst 2 oe oon

reasonable doubt, a declaration which could not be made

on the basis of the record herein, reveals that application

of the proper constitutional standard requires reversal of

Dr. Giese’s conviction.

This conclusion is reinforced when the violation of Dr.

Giese’s right to confrontation by use of the Wallace con-

fession is evaluated in conjunction with the related, and

undoubtedly more prejudicial, error in the argument con-

cerning Dr. Giese’s failure to produce Severin’s testimony.

Although it may be open to question whether the prosecu-

tor knew that Dr. Giese had no legal obligation to produce

this or any other evidence, there can be no doubt that he

knew that Severin was an unindicted co-conspirator whose

testimony could not be compelled in the face of his Fifth

Amendment privilege. Yet, the prosecutor explicitly and

repeatedly invited the jury to infer Dr. Giese’s guilt

directly from Severin’s absence.** Under the circumstances,

this argument, reproduced in substantial part in the State-

ment of the Case above, amounted to more than mere im-

proper comment on the failure to produce evidence. It con-

stituted a barely disguised assertion that Severin, had he

testified, would have established Dr. Giese’s guilt. As such, it

violated Dr. Giese’s right to confrontation, and requires

reversal. Cf., Donnelly v. DeChristoforo, supra, 416 U.S. at

643 n. 15.

121t is hard to view the prosecutor's argument on this point as

anything but puspouete: Similarly, the use of the Wallace confes-

sion came after the trial court had twice warned the prosecution

to refrain from using the confession in yg Ay 3 to implicate any of

the other defendants (RT 217, penile! & e y sew and/or pur-

posefulness of the prosecutors’ misconduct is a factor to be consid-

ered in determining whether reversal is required. Cf., Singer v.

United States (1965) 380 U.S. 24; Frazier v. Cupp (1969) 394

US. 731.

In addition to the failure properly to evaluate these con-

stitutional errors, the Ninth Circuit opinion condoning

extensive prosecutorial misconduct by virtue of counsel’s

failure to object below raises troublesome questions for the

administration of criminal justice in the federal courts.

Fundamentally, that Court’s decision relieves both the

prosecutor and the trial court of any responsibility for

ensuring the integrity of the judicial process or the rights

of criminal defendants.

The Circuit Court’s determination that reversal hero is

not required because of the strength of the prosecution’s

case and counsel’s failure to object reflects an unduly nar-

row interpretation of the “plain error” standard. The

Court has not cited, and Petitioner has not found, any de-

cision in which a pattern of prosecutorial misconduct as

extensive as that presented here was condoned on appeal,

regardless of the strength of the prosecution’s case. Com-

pare, Donnelly v. DeChristoforo, supra, 416 U.S. at 645

with Berger v. United States (1935) 295 U.S. 78, 89. Such

a result is particularly disturbing in a case where, apart

from the Sixth Amendment errors previously noted, the

prosecutor’s argument included several other improprieties,

each of which has independently been characterized as

“plain error” in the opinions of the federal courts of

appeals.

Hall v. United States (5th Cir. 1969) 419 F.2d 582, 585; Steele

v. United States (5th Cir. 1955) 222 F.2d 628, 631; United States v.

Barker (6th Cir. 1977) 553 F.2d 1013, 1025 (inflammatory or de-

ge gi Nes gery of the defendant). United States v. Lud-

wig (10th Cir. 1974) 508 F.2d 140, 142-3; Gradsky v. United States

ee Cir. 1967) 373 F.2d 706, 709-10; United States v. Drummond

2nd Cir. 1973) 481 F.2d 62, 64 (bolstering of prosecution case b

invocation of government's credibility and/or independent know!-

The Ninth Circuit’s application of the plain error

standard, particularly in a conspiracy prosecution relying

almost entirely on the uncorroborated testimony of ac-

complices, is thus at variance with the decisions of other

circuit courts. Moreover, the rule it establishes carries

dangerous implications for other criminal prosecutions in

that it leaves the burden for ensuring the fairness of crimi-

nal trials entirely upon defense counsel, whose failure to

object, for whatever reasons, leaves the defendant without

recourse.

Such a rule is contrary to the spirit of this Court’s prior

decisions. Berger v. United States, supra, decided upon a

record apparently similar to that presented here, estab-

lished the obligation of the United States Attorney, as a

representative of the government, quite apart from any

impetus by defense counsel, to ensure both the appearance

and the reality of justice in criminal prosecutions. The ob-

ligation thus imposed on the prosecution is shared by the

courts. In Viereck v. United States (1943) 318 U.S. 236,

248, the Court recognized that prosecutorial misconduct,

particularly in making derogatory comments about de-

fendant having a tendency to inflame the jury, may be so

highly prejudicial that a federal trial judge should stop

the prosecutor’s discourse without waiting for objection.

And in United States v. Socony-Vacuuwm Ou Co. (1940) 310

U.S. 150, the Court asserted that the circuit courts are re-

quired by the public interest to review, even without ob-

jection, errors which seriously affect the fairness, integrity,

or public reputation of judicial proceedings.

f the facts). Wagner v. United States (5th Cir. 1959) 263

as 877, 883-84 invitation to infer guilt from defendant's failure

to produce evidence ).

The failure of the Court of Appeals here to invoke the

responsibility of the prosecution and the trial court, and

its own responsibility in application of the plain error

standard, suggests a serious abdication of judicial and

prosecutorial responsibility. Failure to exercise this

responsibility will, and has in the instant case, seriously

impair the rights of criminal defendants and the integrity

of the judicial process.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Ninth Circuit.

Dated: August 14, 1979.

Respectfully submitted,

Doron WEINBERG

Counsel for Petitioner

(Appendices Follow)

Appendices

Appendix A

No. 74-3407.

United States Court of Appeals,

Ninth Circuit.

United States of America, :

Plaintiff-Appellee,

Frank Stearns Giese,

Defendant-Appellant. ;

[May 2, 1979.]

As amended on denial of rehearing

and rehearing en banc

March 16, 1979.

Appeal from the United States District Court for the

District of Oregon.

Before, HUFSTEDLER and TRASK, Circuit J udges, and

SWEIGERT,* District Judge.

After its opinion of February 16, 1978, was published in

the advance sheets, the panel withdrew the opinion in order

to afford the full court an opportunity to decide whether to

hear the case en banc. See Editor’s Note, 569 F.2d 527

(1978). The panel amended its opinion, and a majority

of the full court voted to deny en banc consideration. Sub-

°Honorable William T. Sweigert, Senior United States District

Judge for the Northern District of California, sitting by designation.

A-2

sequently an order was entered denying the petition for

rehearing and rejecting the suggestion for rehearing en

bance.

The panel now files its revised majority opinion, together

with the views of the minority and the concurring opinion

of Judge Sweigert.

TRASK, Cireuit Judge:

Frank Stearns Giese appeals from his conviction for con-

spiracy to commit offenses against the United States. We

affirm.

Early on the morning of January 2, 1973, a bomb

exploded at a United States Navy recruiting center in Port-

land, Oregon. Two days later a United States Army recruit-

ing center in that city was dynamited. These acts of ter-

rorism were perpetrated in furtherance of a well-organized

conspiracy, the objects of which were to dramatize the con-

spirators’ opposition to America’s participation in the Viet-

nam War and to disrupt military operations in the Port-

land area. The evidence showed that Giese played a leading

role in the conspiracy.

Giese, a professor of French at Portland State Univer-

sity, met some of his co-conspirators through the Radical

Education Project bookstore which he founded in the fall

of 1971. He sent books to prisoners at the Oregon State

Correctional Institution, and in January 1972 he and James

Cronin, who also worked at the bookstore, began leading

group discussion sessions at the prison. The inmate partici-

pants included Lynn Meyer, Max Severin, and Chester

Stet tt

ET TE SR oe

A-3

Wallace. Meyer contacted Giese at the bookstore shortly

after he was released from prison on furlough in Novem-

ber 1972. Giese introduced him to various people, one of

whom was Leslie McKeel. She, in turn, introduced Meyer to

Robert McSherry, James Akers, and several others, Mc-

Keel, McSherry, Akers, and Cronin jointly operated the

Sundahl Painting Company. Meyer went to work for the

company after receiving his parole on December 5, 1972.

The Sundahl employees held business meetings and politi-

cal discussions at Giese’s bookstore. Akers and Severin,

along with Cronin, worked there part-time.

McSherry and Meyer were the government’s principal

witnesses at trial. According to McSherry, the discussions

at Giese’s bookstore and elsewhere centered around the

participants’ vehement opposition to the Vietnam War.

Eventually they grew tired of doing nothing but talk; they

decided there was a need for direct action. On December

10, 1972, McSherry, Wallace, Severin, McKeel, Akers,

Meyer, and two others held a five-hour meeting at Giese’s

farm. Giese greeted them but did not take part in the dis-

cussion. They agreed, as McSherry put it, “to do everything

within [their] power to stop the war, to disrupt the war for

at least as far as Portland went and as much as [they]

possibly could.” R.T. at 547. Believing violence was neces-

sary to accomplish this end, they discussed bombing recruit-

ing centers, robbing National Guard depots, and other

crimes.

At this stage Giese had not yet agreed to finance the

conspirators’ operations. Needing money with which to buy

weapons, they devised a plan to burglarize the residence

of a wealthy Portland industrialist named Ira Keller. The

» A-4

attempted break-in took place on December 12, 1972, two

days after the meeting at Giese’s farm. Giese had become

a full-fledged participant in the conspiracy by this time.

According to McSherry, he drove several of his fellow con-

spirators to the Keller residence in a rented van. When Me-

Sherry, Wallace, Severin, and Akers tried to enter the

house, an alarm sounded and everyone fled. The following

day Giese met with Akers, Severin, McKeel, Wallace, Cro-

nin and two others at Cronin’s apartment. They discussed

the abortive Keller burglary, and Giese blamed their fail-

ure on a gross lack of planning.

The conspirators’ next act of violence was arranged with

greater care. While McSherry, Cronin, and Akers studied

a book called the Blaster’s Handbook to learn bombing tech-

niques, Severin and McKeel obtained some dynamite. On

January 2, 1973, Wallace, Cronin, Akers, Meyer and Mc-

Sherry committed the Navy recruiting bombing. There is

no evidence that Giese actively participated in the J anuary

2nd bombing. However, at a four-hour meeting held at

his apartment on January 3, 1973, he expressed approval

of what the bombers had done, although he criticized them

for selecting a target in a low-income neighborhood. He

suggested that terrorist activities directed against recruit-

ing centers in downtown Portland or in the white suburbs

would win more popular support. When he was informed

that the next bombing target—an Army recruiting center—

satisfied his criteria, Giese agreed to take part, and he

helped to plan the operation. He also promised his confed-

erates enough money to buy a vehicle and rent a hideout

for storing explosives, ammunition, and stolen weapons.

A-5

McSherry and Meyer testified that early on the morning

of January 4, 1973, Giese drove them and Akers to the

Army recruiting center. Giese remained in his car while

McSherry and Akers planted the explosives and Meyer

stood watch. Meyer carried a pistol given him by Giese,

and Giese was armed with a .38 caliber revolver, Their

mission accomplished, Giese drove the bombers back to

his apartment where they celebrated after learning that the

bomb had exploded.

McSherry and Meyer testified that the conspirators used

money given them by Giese to rent an apartment on An-

keny Street in Portland which they used as a headquarters.

Meyer said Giese also gave them firearms, including an

M-1 carbine. On January 8, 1973, Giese met with McKeel,

Severin, Wallace, Meyer, Akers, McSherry and Cronin at

the Ankeny Street apartment. They discussed plans to rob

a gun store. According to McSherry, Giese told them they

were trying to do too much, too soon, and he urged them

to split up and go underground for a while. When some

of the others indicated their intention to go ahead with

the gun store robbery, Giese refused to participate. He saw

McSherry and the others again on January 13, 1973, out-

side the Ankeny Street apartment and at his farm. Giese

was told that the conspirators would be arming themselves

in the near future, and he again urged them to go under-

ground. So far as the record shows, Giese did not take

part in the gang’s robbery of the Allison and Carey Gun-

works in Portland on January 15, 1973, their robbery of a

bank, their plot to rob a restaurant and blow up a sheriff’s

office, or their other crimes.

A-6

On February 28, 1974, a federal grand jury for the

District of Oregon returned a joint ten-count indictment

charging Giese, Akers, Cronin, Meyer, and Wallace with

a variety of offenses and listing McKeel, McSherry, Sev-

erin, and one other person as unindicted co-conspirators,

Giese was named in six of the counts. Count IV charged

him with misprision of a felony (the January 2, 1973, Navy

recruiting center bombing). Counts V through VIII charged

him with committing various offenses in connection with

the January 4, 1973, Army recruiting center bombing, in-

cluding possession of destructive devices, malicious de-

struction of government property, carrying firearms during

the commission of a felony, and injury to government

property worth more than $100. Paragraph one of Count

X, which alleged a violation of 18 U.S.C. § 371,’ said Giese,

the other defendants, and the unindicted co-conspirators

“did unlawfully, willfully and knowingly conspire, combine,

confererate, and agree together and with each other...

to commit and cause to be committed certain offenses

against the United States and other persons and institu-

tions by means of acts of violence, terrorism and disrup-

tion, including the use of explosives to damage and destroy

and to attempt to damage and destroy certain real and

personal property, both public and private, including the

property described in Counts II and VI of this Indictment

which are realleged and incorporated herein by refer-

‘Title 18 U.S.C. § 371 provides in part:

“If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or

any agency thereof in any manner or for any purpose, and one

or more of such persons do any act to effect the object of the

conspiracy, each shall be fined not more than $10,000 or

imprisoned not more than five years, or both.”

A-7

ence.’ Count II alleged the malicious destruction of the

Navy recruiting center and Count VI alleged the malicious

destruction of the Army recruiting center.’

Prior to trial, Meyer entered a plea of guilty to the

conspiracy charge and agreed to testily as a government

witness. Conspiracy charges against Akers and Wallace

*Paragraph two of Count X alleged that it was part of the con-

spiracy for the named defendants and the unindicted coxconspira-

tors to carry firearms during the bombings. Paragraph three said it

was part of the conspiracy for them to obtain dynamite and various

component to be used to make destructive devices. Paragraph

four charged that it was also part of the conspiracy for them to

make and cause to be made destructive devices to be used in the

bombings. Paragraph four further alleged the commission of thir-

teen overt acts in furtherance of the conspiracy. The overt acts

included: holding various meetings, going to Ira Keller’s residence,

going to the Columbia River levee (where explosives were tested),

going to the emer 3 stations, possessing destructive devices,

receiving a telephone call, and preparing a list of objectives.

*Count II alleged:

“That on or about January 2, 1973, at Portland, Oregon, in

the District of Oregon, JAMES WESLEY AKERS, .. . JAMES

ARTHUR CRONIN, LYNN BRUCE MEYER, . . . and CHES-

TER BENSON WALLACE, .. . defendants herein, by means

of an explosive, did maliciously damage and destroy and

attempt to damage and destroy a building and other personal

roperty wholly possessed, used and leased by the General

Servicios Administration, an agency of the United States, and

the Department of the Navy, a Department of the United

States, all located at 4008 N.E. Union Avenue, Portland, Ore-

gon, in the District of Oregon; in violation of Sections 844(f)

and 2, Title 18, United States Code.”

Count VI alleged:

“That on or about January 4, 1973, at Portland, Oregon, in

the District of Oregon, ... FRANK STEARNS GIESE, . . . and

CHESTER BENSON WALLACE, . . . defendants herein, by

means of an explosive, did maliciously damage and destrcy and

attempt to damage and destroy a building and other personal

roperty wholly possessed, used and leased by. the General

Sachets Administration, an agency of the United States, and

the Department of the Army, a Department of the United

States, all located at 5030 S.E. Foster Road, Portland, Oregon,

in the District or Oregon; in violation of Sections 844(f) and

2, Title 18, United States Code.”

A-8

were dismissed, as was the Count IV misprision charge

against Giese. On October 16, 1974, the jury found Akers

and Wallace guilty on Counts I through III and Counts V

through VIII and found Cronin guilty on Counts I through

IIt and Count X. The jury acquitted Giese on Counts V

through VII but found ium guilty on Count X (conspiracy).

Because Giese did not file his appellate brief on time, this

court severed his case from the appeals of the other de-

fendants. On August 26, 1976, we affirmed in part and

vacated in part the convictions of Akers, Cronin, and Wal-

lace. Cronin’s conviction for conspiracy was affirmed.

United States v. Akers, 542 F.2d 770 (9th Cir. 1976).

In challenging his conviction for conspiracy, Giese raises

six separate issues:

(1) Was Count X of the indictment legally sufficient?

(2) Did the district court err in denying Giese’s mo-

tions for bills of particulars?

(3) Was the voir dire examination adequate?

(4) Did the court err in admitting certain evidence?

(5) Were the court’s instructions to the jury erro-

neous?

(6) Did the government commit reversible acts of

prosecutorial misconduct?

iil

Appellant Giese contends that his conviction must be re-

versed because the conspiracy charge against him was

vague and overbroad, thereby depriving him of fair notice

of the accusation against him and permitting the jury to

return a guilty verdict based on conduct not violating

Spe ner nee ee ane

A-9

federal law. He makes three arguments attacking the suffi-

ciency of the conspiracy count.

First, he asserts that the indictment failed to specify

adequately the offenses which were the object of the con-

spiracy. He says the indictment’s incorporation of the fed-

eral offenses (the bombings) detailed in Counts II and VI

did not exhaust the object offenses on which the jury could

have based its conviction since the indictment also con-

tained references to crimes against “other persons and in-

stitutions” and to the destruction of “public and private”

property.

A well-drafted indictment conveys important information

to a defendant. In Russell v. United States, 369 U.S.

749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962), the

Supreme Court outlined the two standards by which the

adequacy of an indictment is to be evaluated:

“These criteria are, first, whether the indictment

‘contains the elements of the offense intended to be

charged, “and sufficiently apprises the defendant of

what he must be prepared to meet,”’ and secondly,

‘“““n case any other proceedings are taken against

him for a similar offense, whether the record shows

with accuracy to what extent he may plead a former

acquittal or conviction’.” [Citations omitted.]’ ”

An indictment charging a conspiracy under 18 U.S.C. § 371

satisfies these requirements if it alleges the three elements

which are the gist of the offense: “the agreement, the un-

lawful object towards which the agreement is directed, and

an overt act in furtherance of the conspiracy.” United

States v. Charnay, 537 F.2d 341, 350 (9th Cir.), cert. denied,

429 U.S. 1000, 97 S.Ct. 528, 50 L.Ed.2d 610 (1976). Because

A-10

“the conspiracy is the gist of the crime” in such an indict-

ment, “it is not necessary to allege with technical precision

all the elements essential to the commission of the offense

which is the object of the conspiracy, or to state such ob-

ject with the detail which would be required in an indict-

ment for committing the substantive offense.” Wong Tai v.

United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301-2, 71 L.Ed.

045 (1927) (citations omitted).

Applying these requirements to-the present case, we re-

ject appellant’s argument that Count X was vague and

overbroad. “[A]n indictment is not to be read in a techni-

cal manner, but [it] is to be construed according to common

sense with an appreciation of existing realities.” United

States v. Anderson, 532 F.2d 1218, 1222 (9th Cir.), cert.

demied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976).

Such an interpretation of Count X persuades us that ap-

pellant’s fears and complaints are illusory.

Considered as a whole, Count X adequately apprised

Giese that the grand jury had found the two recruiting

center bombings to be the primary object offenses of the

conspiracy. The first paragraph of the count specifically

referred to these offenses. The following three paragraphs

stated that part of the conspiracy was for the defendants

to carry firearms during the bombings and to construct

the destructive devices used in the explosions.‘ In addition,

almost all the overt acts referred to by the indictment per-

tained to these federal offenses.’ After reading Count X,

appellant could not possibly have been confused about what

‘See note 2, supra.

*See note 2, supra.

A-11

the government would attempt to prove at trial. As re-

quired by Russell v. United States, supra, 369 U.S. at 763,

82 S.Ct. 1038, he knew of the object offenses which he had

to defend against.

Appellant urges that the broad language in Count X

about offenses against “other persons and institutions”

and damage to “public and private” property embraced

unspecified object offenses such as the attempted burglary

of Keller’s home and the robbery of the Allison and Carey

Gunworks. This interpretation of the indictment is mis-

guided. Since these acts are not federal offenses, it is un-

reasonable to assume that the indictment contained subtle,

ambiguous references to crimes which could not properly

be tried before a federal jury. Even if it did, however, this

error was not fatal, for appellant was not on trial for

conspiracy to commit non-federal offenses (specified or

not in the indictment). He could not have been convicted

on this basis, and he did not have to defend himself against

these charges.

A more natural construction of these words is that they

referred to the damage to private property located near

the recruiting centers which resulted from the excess force

of the explosions. The indictment did not need to refer to

damage to adjoining property (and to the individuals who

owned it), but any over-breadth or vagueness created

thereby was not prejudicial. The jury was able to focus

on the federal object offenses, as indicated by its verdict

finding appellant guilty of “conspiracy to commit certain

offenses against the United States.” C.T. at 687.

Second, appellant contends that because the indictment

described offenses which were non-federal, “[t]he likeli-

A-12

hood that the jury improperly convicted [him], at least

in part, on the theory that he conspired to commit offenses

against persons or property referred to by the evidence,

but not cognizable as federal crimes, is quite strong... .”

He asserts that the trial court’s failure to focus on the

federal offenses in its instructions to the jury only in-

creased the possibility of a conviction based on non-federal

offenses.

This argument is not convincing. As we have established,

Count X of the indictment focused on federal offenses: the

two bombings of the recruiting centers. Any reference to

non-federal offenses were superfluous and harmless. Fur-

thermore, even assuming that the indictment embraced

non-federal offenses, the inclusion of a non-federal offense

in a federal conspiracy indictment is permissible if the con-

spiracy also involves federal offenses. “A single conspir-

acy may have several purposes, but if one of them—

whether primary or secondary—be the violation of a fed-

eral lew, the conspiracy is unlawful under federal law.”

Anderson v. United States, 417 U.S. 211, 226, 94 S.Ct. 2253,

2263, 41 L.Ed.2d 20 (1974).

A conviction for such a conspiracy is valid as long as

the court’s instructions inform the jury that the defend-

ant’s guilt must be based on his agreement to commit at

least one of the conspiracy’s objectives violating federal

law. See United States v. Gallishaw, 428 F.2d 760, 763 (2d

Cir. 1970). The trial court instructed the jury that the

government was required to prove that appellant had con-

spired to commit federal offenses. The adequacy of this

instruction (and an answer to appellant’s assertion that

he was convicted of conspiring to commit non-federal of-

A-13

fenses) is shown by the jury’s verdict, which found appel-

lant guilty of “conspiracy to commit certain offenses

against the United States.” C.T. at 687.

Third, appellant objects to the section of the indict-

ment which alleged that he conspired “to commit and

cause to be committed certain offenses against the United

States ....” After stating that “[t]here is no such federal

offense as conspiracy to aid and abet the commission of a

crime or conspiracy to cause the commission of a crime,”

he argues that the words “cause to be committed” imper-

missibly “allowed the jury to convict [him] of conspiracy

on the basis that he merely aided and abetted criminal

acts committed in furtherance of the conspiracy, rather

than participating as a member of the conspiracy.”

Appellant’s interesting theory is based on his contention

that it is not a federal offense to conspire “to cause to be

committed” a crime against the United States. His conten-

tion is erroneous, however, as a simple reading of the stat-

utes involved in the conspiracy charge demonstrates. De-

struction of government property by means of an explo-

Sive is a violation of 18 U.S.C. § 844(f),° as alleged in

Counts II and VI of the indictment. Conspiracy “to com-

*Title 18 U.S.C. § 844(f) provides:

“Whoever maliciously damages, or destroys, or attempts to

damage or destroy, by means of an explosive, any halliben

vehicle, or other personal or real property in whole or in part

owned, possessed, or used by, or leased to, the United States,

any department or agency thereof, or any institution or organ-

ization receiving Federal financial assistance shall be impri-

soned for not more than ten years, or fined not more than

$10,000, or both; and if personal injury results shall be impri-

soned for not more than twenty years, or fined not more than

$20,000, or both; and if death results shall be subject to im-

risonment for any term of years, or to the death penalty or to

e imprisonment as provided in section 34 of this title.”

A-14

mit” any offense against the United States is a violation

of 18 U.S.C. § 371; this violation was alleged in Count X.

Since destruction of government property by explosives

is an offense against the United States, clearly it is illegal

to conspire “to commit” this act.

Title 18 U.S.C. § 2(b) provides that “[w]hoever willfully

causes an act to be done which if directly performed by

him or another would be an offense against the United

States, is punishable as a principal.” Combining this stat-

ute with 18 U.S.C. § 844(f), it follows that it is a federal

offense to cause another person to destroy government

property by means of an explosive. Because this act is an

offense against the United States, it also follows that it

is illegal under 18 U.S.C. § 371 to conspire “to cause to be

committed” the destruction of government property by ex-

plosives. Thus, even if appellant had not participated di-

rectly in the January 4, 1973, bombing, the jury could have

convicted him on Count X because of his participation in

a conspiracy “to cause to be committed” this act of destruc-

tion.

In United States v. Lupino, 480 F.2d 720, 724 (8th Cir.),

cert. denied, 414 U.S. 924, 94 S.Ct. 257, 38 L.Ed.2d 159

(1973), the defendant offered a similar argument by con-

tending that conspiracy “to cause” a felon to commit the

substantive offense of receiving a firearm (18 U.S.C. App.

§ 1202(a)(1)) is not a violation of 18 U.S.C. §371. The

court concluded that “[t]his ingenious argument, in the

final analysis, constitutes a futile exercise in semantics.”

480 F.2d at 724. We agree.

NR ait nT ABA Sah LAAs

A-15

Prior to trial, appellant and his co-defendants made two

motions for bills of particulars. The first motion contained

over 100 separate requests, and referred to all ten counts

of the indictment. The second motion contained fewer re-

quests, each of which was related to Count X. Citing the

“ambiguities and uncertainties” of Count X, appellant’s

second motion asked for a wide range of information, such

as lists of conspiratorial acts performed by each person

named in the indictment and of each overt act and object

of the conspiracy. His first motion asked for even more

specific information, such as how each of the 13 overt acts

described in Count X contributed to the conspiracy and

which oral statements made by the defendants created the

conspiracy. Reiterating his theory advanced in section III,

supra, that Count X of the indictment was vague and over-

broad, he now argues that the court’s denial of these mo-

tions was reversible error.

Rule 7(f) of the Federal Rules of Criminal Procedure

provides for a bill of particulars:

“The court may direct the filing of a bill of particu-

lars. A motion for a bill of particulars may be made

before arraignment or within ten days after arraign-

ment or at such later time as the court may permit. A

bill of particulars may be amended at any time sub-

ject to such conditions as justice requires.”

The bill of particulars has three functions: “to inform

the defendant of the nature of the charge against him with

sufficient precision to enable him to prepare for trial, to

avoid or minimize the danger of surprise at the time of

trial, and to enable him to plead his acquittal or conviction

in bar of another prosecution for the same offense when

A-16

the indiciment itself is too vague, and indefinite for such

purposes.” United States v. Birmley, 529 F.2d 103, 108

(6th Cir. 1976). Accord, United States v. Andrino, 501 F.2d

1373, 1378 (9th Cir 1974); Yeargain v. United States, 314

F.2d 881, 882 (9th Cir. 1963). The denial of a motion for a

bill of particulars is within the discretion of the district

court; its decision will not be disturbed absent an abuse

of this discretion. United States v. Clay, 476 F.2d 1211,

1215 (9th Cir. 1973).

We find that the denial of the motions was not an abuse

of discretion. As discussed in section III, supra, Count

X of the indictment was neither vague nor overbroad. It

apprised appellant of the federal offense with which he

was charged and of the overt acts which allegedly contrib-

uted to his participation in the conspiracy. “To the extent

that the indictment or information itself provides details

of the alleged offense, a bill of particulars is, of course,

unnecessary.” 8 Moore’s Federal Practice § 7.06[1] at 7-31

n.1 (2d ed. 1978). Furthermore, the government provided

appellant with a large volume of information, including

physical evidence offered at trial, grand jury testimony,

and memoranda which revealed the government’s theory of

the case. Full discovery also obviates the need for a bill of

particulars. United States v. Clay, supra, 476 F.2d at 1215;

8 Moore’s Federal Practice [ 7.06(1) at 7-33.

The information available to appellant was actually more

than he had a right to demand, for there is no requirement

in conspiracy cases that the government disclose even all

the overt acts in furtherance of the conspiracy. ;United

States v. Murray, 527 F.2d 401, 411 (5th Cir 1976);

United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), cert.

demied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975) ;

A-17

United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975),

cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378

(1976). Count X listed the 13 overt acts in furtherance

of the conspiracy. Appellant’s request for the “when, where,

and how” of every act in furtherance of the conspiracy was

equivalent to a request for complete discovery of the gov-

‘ernment’s evidence, which is not a purpose of the bill of

particulars. United States v. Armocida, supra, 515 F.2d at

o4. “A defendant is not entitled to know all the evidence the

government intends to produce, but only the theory of the

government’s case.” Yeargain v. United States, supra, 314

F.2d at 882. From the indictment and the government evi-

dence which he did receive, appellant learned enough of the

charges against him to prepare for trial, to avoid surprise

at trial, and to plead double jeopardy in the event of a new

prosecution.

The Sixth Amendment requires that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury .. ..” An examination

or “voir dire” of prospective jurors helps to ensure that

the defendant is tried by an impartial jury. Rule 24(a) of

the Federal Rules of Criminal Procedure provides that the

court may decide whether it or the parties’ counsel will

conduct the examination.’ If the court conducts the voir

"Fed.R.Crim.P. 24(a) provides:

“The court may permit the defendant or his attorney and the

attorney for the government to conduct the examination of

rospective jurors or may itself conduct the examination. In the

fatter event the court shall permit the defendant or his attorney

and the attorney for the government to supplement the exami-

nation by such further inquiry as it deems proper or shall itself

submit to the | rapereta jurors such additional questions by

the parties or their attorneys as it deems proper.”

A-18

dire, it “shall permit the defendant or his attorney and the

attorney for the government to supplement the examina-

tion by such further inquiry as it deems proper or shall

itself submit to the prospective jurors such additional ques-

tions by the parties or their attorneys as it deems proper.”

Fed.R.Crim.P. 24(a).

We have held that “the scope of the voir dire examina-

tion and the procedures to be used are matters within the

sound discretion of the trial judge, and will not be disturbed

on appeal unless the procedures used or the questions pro-

pounded are so unreasonable or devoid of the constitu-

tional purpose as to constitute an abuse of that discretion.”

Haslam v. United States, 431 F.2d 362, 364 (9th Cir.),

cert. dented, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142

(1970). “It is not an abuse of discretion for the trial judge

to insist upon conducting a voir dire examination, but if he

does so, he must exercise a sound ‘judicial’ discretion in

the acceptance or rejection of supplemental questions pro-

posed by counsel . . ..” Silverthorne v. United States, 400

F.2d 627, 638 (9th Cir. 1968).

A. Juror Attitudes

Appellant does not contest these principles or the de-

cision of the court to conduct voir dire examination. Rather,

he contends that as a man of unpopular political views who

found himself on trial for conspiracy to destroy military

recruiting centers, he was entitled to discover prospective

jurors’ attitudes toward law enforcement personnel, mili-

tary personnel, the use of firearms, and the Vietnam War.

He argues that the court’s perfunctory exploration of these

topics, coupled with its refusal to submit defense counsel’s

more probing questions to the jurors, was reversible error.

A-19

The amount of time a trial court must spend inquiring

into prospective jurors’ attitudes varies with each case.

Most crimes are mundane, and require only a cursory voir

dire examination. Crimes of bombing and terrorism, espe-

cially if committed as a protest against governmental

behavior, more easily arouse the prejudices of prospective

jurors, however, and necessitate a more elaborate voir dire.

Although appellant’s activities occurred in 1972 and 1973,

near the termination of the Vietnam War, they might have

inflamed the passions of at least several prospective jurors,

rendering them incapable of performing fairly at his trial.

Even in 1974, at the time of appellant’s trial, many Ameri-

cans opposed any form of protest against the War, and a

still greater number opposed the equation of violence with

political expression. Some laypersons might have carried

these attitudes with them into a trial of a man accused of

conspiring to bomb military recruiting centers. Therefore,

it was essential for the trial judge in the present case to

examine prospective jurors’ attitudes toward appellant and

the views he represented.

The court thoroughly questioned the first prospective

juror, and elicited information about his views toward

law enforcement personnel, the armed forces, the use of

firearms, Vietnam War protests, and his exposure to pre-

trial publicity. This inquiry was detailed and comprehen-

sive, and it focused on the areas about which appellant

desired information. After hearing this juror’s answers,

appellant, the government, and the court knew with some

certainty whether or not he was qualified to serve at the

trial. The court’s examination of several other jurors was

A-20

also beyond reproach.® For some jurors, however, the court

conducted a more limited inquiry, asking merely if a juror

had any responses to questions that the court had asked

other prospective jurors.®

In the interest of symmetry, a uniform examination of

each juror might have been desirable. Our function is not

to ascertain whether the voir dire met technical standards

of perfection, however. We will not find an examination

inadequate unless the district court abused its discretion by

failing to ask questions capable of revealing the prejudices

of the prospective jurors. In the present case, the court

did not ask every juror specific questions about his or her

attitudes toward law enforcement and military personnel,

the use of firearms, and the Vietnam War. However, each

juror was asked, at a minimum, to consider the more

detailed questions directed at the previous jurors and to

inform the court of any different responses which these

queries elicited.

After observing the amount of time required for a full-

seale examination of each juror, the district court had the

authority to adopt a more compact mode of inquiry. See

Haslam v. United States, supra, 431 F.2d at 364. In United

States v. Amaral, 488 F.2d 1148, 1150 (9th Cir. 1973), we ap-

proved a voir dire in which the court asked the first prospec-

tive juror a question about racial prejudice and thereafter

“reminded the prospective jurors that ail questions asked

of one juror were asked of all and that the voir dire process

was a cumulative one designed to probe into the juror’s

°E.g., R.T. at 292-302, 308-12.

°E.g., R.T. at 341-42, 366.

a oe ee

A-21

state of mind to discover whether each could determine

guilt or innocence based solely on the evidence presented

at trial.” The questions propounded by the district court

in United States v. Giese succeeded in ferreting out jurors

who were incapable of serving impartially. In response to

the court’s general question that incorporated the more

specific questions asked of other jurors, several prospec-

tive jurors expressed strong feelings about law enforce-

ment personnel and the Vietnam War.’ These jurors did

not serve on the panel which tried appellant.

At the close of the initial voir dire, the court permitted

defense counsel to suggest additional questions to ask the

jurors. Although the court refused to ask requested ques-

tions about President Ford’s conditional amnesty plan and

his pardon of former President Nixon, it did honor most

of the other requests. This procedure gave defense counsel

an opportunity to participate in the voir dire and to ensure

that jurors with questionable qualifications were elimi-

nated.

Appellant argues that the court erred in refusing to

accept all his proposed questions, which he offered both

before and during the examination. A district court has con-

siderable discretion to accept or reject proposed questions,

however, and as long as it conducts an adequate voir dire,

its rejection of a defendant's specific questions is not error.

United States v. Heck, 499 F.2d 778, 790 (9th Cir.), cert.

denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974) ;

United States v. Hamling, 481 F.2d 307, 314 (9th Cir. 1973),

aff'd, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The

°F.g., R.T. at 350-52, 367-68,

A-22

district court asked many of the questions suggested by

appellant, but, to conserve time and avoid confusion, was

justified in declining to ask the others. United States v.

Workman, 454 F.2d 1124, 1128-29 (9th Cir.), cert. denied,

409 U.S. 857, 93 S.Ct. 138, 34 L.Ed.2d 102 (1972). Given

the adequacy of the voir dire examination which it did

conduct, we cannot say that the court erred in not using

every question proposed by appellant:

“The court closest to the situation can best evaluate

the proper way to walk the difficult line between a

vigorous voir dire to determine any possible bias by

specific questions which add ‘fuel to the flames’ in

suggesting the presence of controversial issues.”

United States v. Polizzi, 500 F.2d 856, 880 (9th Cir.

1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42

L.Ed.2d 820 (1975).

B. Pretrial Publicity

Appellant also argues that the district court failed to

safeguard his right to an impartial jury uninfluenced by

prejudicial pretrial publicity. He contends that massive

publicity surrounded his indictment, necessitating a de-

tailed inquiry into the exposure of each prospective juror

to media coverage. The trial court’s cursory probe into

this subject, he concludes, did not dispel the substantial

possibility that he was tried by jurors who formed their

opinions prior to trial.

Perhaps to the misfortune of everyone involved in the

judicial process, no precise rule describes the type of voir

dire examination which is necessary to protect against

prejudicial pretrial publicity. The appropriate scope and

detail of the voir dire depend on the level of pretrial pub-

ee eee

A-23

licity and the discretion of the district court. When “pre-

trial publicity is great, the trial judge must exercise cor-

respondingly great care in all aspects of the case relating

to publicity which might tend to defeat or impair the rights

of an accused.” Silverthorne v. United States, supra, 400

F.2d at 637-38. The voir dire “must not simply call for the

jurors’ subjective assessment of their own impartiality, and

it must not be so general that it does not adequately probe

the possibility of prejudice.” United States v. Polizzi,

supra, 500 F.2d at 879. The district court should conduct

a careful, individual examination of each prospective juror,

preferably out of the presence of the other jurors. A gen-

eral question directed to the entire group of prospective

jurors is inadequate. See id. at 879-80; Silverthorne v.

United States, supra, 400 F.2d ai 638-40; ABA Standards

Relating to Fair Trial and Free Press §3.4(a) at 130

(Approved Draft, 1968).

In cases of less publicity, however, these procedures are

not required. Several general questions addressed to the

entire panel of jurors, followed by individual questioning

of jurors who respond affirmatively to the initial inquiries,

may be sufficient if it becomes clear that few jurors have

any knowledge of the case. See United States v. Liddy, 166

U.S.App.D.C. 95, 103-104, 509 F.2d 428, 436-37 (1974),

cert. dented, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842

(1975) ; Umted States v. Polizzi, supra, 500 F.2d at 879-80.

Similarly, the court initially may ask several jurors specific

questions about their exposure to pretrial publicity, and,

once it is apparent that they know little or nothing about

the case, may direct more general questions, incorporating

all the questions asked previously to the remaining jurors.

A-24

Since the district court confronts a difficult task in assess-

ing the type of voir dire which is necessary, the responses

of the first jurors queried can serve as an indication, at

least as reliable as other subjective evaluations, of the

amount of publicity the case has generated.

In the present case, the court asked approximately half

the potential jurors, most of whom were among the first

jurors questioned, about their exposure to pretrial pub-

licity. Almost every juror had little or no prior knowledge

of appellant’s indictment, arrest, and pending trial.” Jur-

ors who stated that they had formed opinions about the

case did not serve on the trial jury. ** The remaining jurors

were asked more general questions about their ability to

serve impartially. Again, uowever, jurors who expressed

opinions about the case were excused.”

The district court did not abuse its discretion by the

manner in which it disposed of the pretrial publicity ques-

tion. “Unless a trial judge clearly has erred in his estima-

tion of the action needed to uncover and prevent prejudice

from pretrial publicity, an appellate court should not inter-

vene and impose its estimate.” United States v. Polizzi,

supra, 500 F.2d at 880. By its own observation of media

coverage of appellant’s case, the district court was able

to determine the level of publicity surrounding the trial

and the care required to screen out biased jurors. We are

11Approximately half of all veniremen asked specifically about

their aiiek oiiiedie of the case stated that they had none. Almost

all the jurors who knew about the case had only the vaguest under-

standing of the crimes committed and the political issues allegedly

at stake. R.T. at 306-08, 310, 324, 333, 354, 358, 362, 379.

RT. at 346-48.

8FE.g., R.T. at 351-52, 367-68, 375-76.

abt etl wr 1d. wetased

oe te ees te

be btinctar hea Nal eit a ee wel IIE iene ted

A-25

not in a position to assess more accurately how many head-

lines, editorials, and photographs the media devoted to

appellant’s activities, arrest, and trial. The absence of a

significant number of jurors who were influenced by, or

had even seen, coverage of appellant’s case in newspapers

and on radio and television reinforced the court’s evalua-

tion of this prosecution as one in which a highly intensive

probe of each juror was unnecessary.

Only in a case involving extreme pretrial publicity, with

demonstrated effects on the prospective jurors, have we

held that a trial court’s voir dire was inadequate. In Silver-

thorne v. United States, supra, 400 F.2d at 635, 639, all

65 veniremen admitted hearing about the case, and 30

percent of these panelists ied formed an opinion about the

defendant’s guilt or innocence. We found that “under the

peculiar and difficult facts of this case,” the court had

abused its discretion by conducting a cursory voir dire

examination. Jd. at 640. The factual pattesrn of United

States v. Giese more closely resembles that of United States

v. Polizzt, supra, however. In Polizzi, there had been some

coverage of the defendant’s trial, but the “trial judge’s

questions on pretrial publicity were limited to two ques-

tions addressed to the first prospective panel of jurors

and later questions addressed to an individual prospective

juror.” Id. at 879-80 -(footnotes omitted). Because the

answers to these questions gave no indication of possible

prejudice, we found the voir dire adequate. We make a

comparable finding in the present case.

A-26

A. From the Movement Toward Revolution

Giese claims the trial judge committed three separate

errors in permitting the government to use a book entitled

From the Movement Toward Revolution as evidence

against him. First, he argues that it was error to admit

the book in the prosecution’s case-in-chief for the purpose

of showing the association between Giese and the other

conspirators because its prejudicial effect outweighed its

probative value. Second, he says the book’s contents should

never have been revealed to the jury because they were

hearsay and irrelevant to the offense charged. Third, he

argues that it was improper for the court to permit the

prosecutor to ask Giese to read allegedly inflammatory

passages from the book in front of the jury. Giese contends

that in addition to violating the rules of evidence, adinis-

sion of From the Movement Toward Revolution infringed

his First Amendment liberties, including freedom of ex-

pression and the right to receive information.

We reject Giese’s arguments, but in so doing we wish

to emphasize that we are not establishing a general rule

that the government may use a person’s reading habits,

literary tastes, or political views as evidence against him

in a criminal prosecution. In many cases such evidence

would be clearly inadmissible. See, e. g., United States v.

McCrea, 583 F.2d 1083 (9th Cir. 1978). Our decision up-

holding the admissibility of From the Movement Toward

“Giese also contends that the court erred in permitting the prose-

cutors to mischaracterize the book in a Eye way Sivas

closing argument. See Part VIII and nn. 29 & 30 infra.

A-27

Revolution stems from the peculiar circumstances of this

case and, reflecting our concern for the sensitive nature

of First Amendment values, it rests on very narrow

grounds. We hold that it was proper to introduce the book

during the government’s case-in-chief because it bore the

fingerprints of Giese and three of his co-conspirators and

thus tended to corroborate witnesses’ testimony that the

conspirators associated with each other. We further hold

that it was proper to ask Giese to read extracts from the

book on cross-examination because he opened the door to

that line of inquiry by introducing 18 books as evidence

of his peaceable character during his own testimony on

direct examination.”

At the outset we must clearly distinguish between the

book as a physical object which bore certain fingerprints

and the book as a work of literature which contained a

particular message. During the government’s case-in-chief

not a single word was said by the prosecutors or by any

government witness regarding the book’s contents. From

the Movement Toward Revolution was used solely for the

limited and permissible purpose of proving association.

Co-conspirator McSherry testified that the book-—Govern-

ment Exhibit C-49—belonged to co-conspirator Severin,

R.T. at 672, and co-conspirator Meyer said he had seen

it in the possession of various conspirators at apartments

in Portland and Seattle. R.T. at 996. The prosecution and

defense attorneys stipulated that FBI agent Frank Doyle

**In view of our holding that From the Movement Toward Revo-

lution was admissible to prove association, to rebut Giese’s character

evidence, and to mtb Giese’s credibility as a witness, we need

not express any opinion Me Ngee the government’s argument that

the book was also admissible to show the conspirators’ purpose,

motive, and intent.

A-28

would testify that he seized the book during the search of a

San Jose, California apartment occupied by co-conspirators

McKeel, Severin, and Wallace. Following the stipulation,

Exhibit C-49 was received in evidence along with 26 other

items which had been seized in San Jose. R.T. at 1290-91."°

©The following colloquy took place at R.T. 1290-91:

“THE COURT: You have a stipulation of some sort?

MR. PAULSON [Giese’s attorney]: Yes, sir.

MR. PAULSON: Basically, we have agreed if the agent

were called he would say he searched and found certain ex-

hibits and identified them. He will read off the list of exhibits.

THE COURT: And that you are not waiving your earlier

objections?

MR. PAULSON: That is correct.

THE COURT: But stipulating as to this part of it?

MR. PAULSON: Yes, sir.

THE COURT: Which are the exhibits?

MR. TURNER [prosecutor]: Special Agent Doyle, pur-

suant to the search warrant searched Apartment Number 10 in

San Jose and he found the following exhibits which he can

identify which bear either his initials or some other identifying

marks and they are—these are all C-21, 22, 23, 24, 25, 26, 27, 29,

42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58,

60—sorry, 59.

THE COURT: It will be received... .”

When the trial judge said “It will be received,” R.T. at 1291, he

apparently meant “It” to include the group of exhibits as well as the

stipulated testimony. The reporter’s exhibit list states that From the

Movement Toward Revolution was received in evidence at R.T.

1292. The reporter made a slight mistake: the list should say Exhibit

C-49 was admitted at R.T. 1291. Throughout the rest of the trial,

From the Movement Toward Revolution was consistently referred

to by both sides as being “in evidence.” See, e. g., R.T. at 1673-74,

1765, 2077, 2078, 2133.

Giese’s attorney's statement that he was not waiving his “earlier

objections,” R.T. at 1291, was a reference to a pretrial motion to

suppress all items taken from the San Jose apartment. See R.T. at

116-26, C.T. at 406. The court held that Giese lacked standing to

challenge the legality of the San Jose search and seizure, R.T. at

190, and denied the motion to suppress as to the defendant

(Wallace) who did have standing. R.T. at 499-501. The court’s rul-

ing was not assigned as error on appeal, and therefore we express

no opinion concerning it.

ee aa, tent ~

A-29

Exhibit C-49 was linked to individual conspirators when

FBI fingerprint expert Richard Ranels testified that

fingerprints found on the book matched those on exemplars

furnished by Giese, Wallace, Severin, and McKeel. R.T.

at 1510-14.""

"Three of Giese’s fingerprints were found on page 146 of From

the Movement Toward Revolution; three were on page 166; one

was on page 167; and two were on page 168.

The pg Be see contains two somewhat confusing refer-

ences to F.B.I. fingerprint expert Ranels’ testimony concerning the

possible age of the fingerprints found on Exhibit C-49. At one point

the dissent says Ranels testified that “the recovered prints on

‘Revolution’ could have been up to seven years old.” Elsewhere the

a Ranels as having “said that latent prints had been

recov: that were seven years old.” Judge Hufstedler’s Opinion,

slip op. at 1456, 1459, at ...... rae ese comments conv

the erroneous impression that, from the standpoint of events which

took place between late 1971 and early 1973, the fingerprint evi-

dence was so stale and so remote as to be utterly devoid of any

robative value. The dissenting opinion is misleading because it

ails to note that when Ranels said he had found fingerprints that

were “up to six and seven years old,” he was not referring specifi-

cally to the prints on Exhibit C-49. Rather, he was simply recount-

ing his general experience: at some time in the past he and his

associates had examined documents that bore six or seven year-old

fingerprints. Here is the colloquy between Ranels and Giese’s

lawyer on which the dissent’s comments are :

“MR. PAULSON: Can you tell us, sir, how long that finger-

print you said you found on page 166 had been present om ond

you made your examination?

A. [RANELS]: No, sir, I cannot.

MR. PAULSON: Are there any limits? Could it have been

there ten years or what?

A. [RANELS]: I can never recall having developed any-

thing to my ema gph was ten years old with this partic-

ular type of chemical. However, it could have been quite old.

MR. PAULSON: What do you mean by quite old?

A. [RANELS]: Under controlled processing we have de-

veloped prints of this type using this method that were up to

six and seven years old. ,

R.T. at 1512.

The record clearly shows that the fingerprints on From the Move-

ment Toward Revolution, which was or cg in 1971, were at

most only three and one-half years. old when Ranels testified at

A-30

On appeal Giese argues that the book had “virtually no

probative value as evidence” of association, and what little

value it did have was “substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.” Appellant’s Brief at 44-45. No

such objection was made at any point during the govern-

ment’s case-in-chief. Nor did Giese’s attorney request a

limiting or cautionary instruction when the book was re-

ceived in evidence.** Consequently, we must apply a plain

Giese’s trial in October 1974. The prints were Sg than that, of

course, at the time Ranels and the other F.B.I. laboratory tech-

nicians processed them. Of greater relevance is the uncontradicted

proof that the fingerprints were placed on the book during a two-

year period, i. e., between mid-March 1971 and mid-March 1973.

The page Ranels was asked about (page 166) contains part of an

article entitled “Open Letter to the Weather Underground.” The

article A pe on page 164, at the bottom of which is this footnote:

“Reprinted with permission from The East Village Other, Vol. 6,

No. 13, February 23, 1971.” The last item in the book is dated

March 13, 1971. Thus it would have been impossible for the con-

spirators to have handled Exhibit C-49 prior to mid-March 197].

And since the book was seized from the conspirators’ a ent in

a on March 22, 1973, R.T. at 1265-66, it would have been

equally impossible for Giese and the others to have put their finger-

prints on it after mid-March 1973. These dates are significant be-

cause the fact that Giese, Wallace, Severin, and McKeel passed

From the Movement Toward Revolution among themselves some-

time between mid-March 1971 and mid-March 1973 tended to cor-

roborate prosecution witnesses’ testimony that the conspirators

associated with each other between late 1971 and early 1973.

‘Except for the Fourth Amendment objection discussed in note

16 supra, Giese’s counsel made only one objection during the gov-

ernment’s case-in-chief which was even remotely connected with

From the Movement Toward ion. The objection did not

challenge the book’s prosatiye value as circumstantial evidence of

association, but merely alleged that the government had laid an

inadequate foundation. Giese’s attorney claimed a chart reproduc-

ing the fingerprints found on Exhibit C-49 was inadmissible because

the prints may have been put on the book before the beginning of

the conspiracy as set forth in the indictment. The objection was

roperly overruled. Even if the fingerprints were placed on the book

Goteais the pre= gue A jelled in December of 1972, the conspirators’

association with each other prior to that time was relevant to the

issue of whether they later formed an agreement. Williamson v.

> . gg eg a

Sune ies OM cous eer o- Ee

ae amelie’

—..

w: SS

hte

A-31

error standard of review to Giese’s appellate argument

that the book was inadmissible as proof of association.

We hold that the court below did not plainly err in per-

mitting the prosecution to introduce From the Movement

Toward Revolution for the purpose of showing association.

Nothing about the book except its title was revealed to the

jury during the prosecution’s case-in-chief. It is true that

book titles alone ce’. sometimes have a tendency to preju-

dice a defendant, _nited States v. McCrea, supra, 583 F.2d

at 1086, but in this case the exhibit’s probative value

clearly outweighed the title’s slightly prejudicial effect.

McCrea is readily distinguishable from the instant appeal

because the books which were introduced by the prosecu-

tion in McCrea were totally lacking in probative value,

either as works of literature containing a particular type

of information or as physical objects linking the persons

who read them. McCrea involved the prosecution of a

single defendant who was charged with possession of un-

registered firearms and destructive devices. Knowing pos-

session was all the government had to prove; the

defendant’s intent was immaterial. See United States v.

Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Bd.2d 356

United States, 310 F.2d 192, 199 (9th Cir. 1962). Evidence of

behavior and relationships antedating the period covered by the

indictment is ened admissible as bearing on the existence of the

conspiracy and on the significance of later behavior. United States

v. Partin, 552 F.2d 621, 634 (5th Cir.), cert. denied, 434 U.S. 903,

98 S.Ct. 298, 54 L.Ed.2d 189 (1977); United States v. Crockett, 514

F.2d 64, 72 (5th Cir. 1975). Cf. United States v. Baumgarten, 517

F.2d 1020, 1029 (8th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 152,

46 L.Ed.2d 111 (1975) (Evidence concerning history and phil-

osophy of Students for a Democratic Society and overall sediead

movement held relevant and admissible to show the association of

<n with one another prior to the date fixed in the indict-

ment.

A-32

(1971). One cannot logically infer possession of firearms

and explosives (as opposed to knowledge of how to use

them) from mere possession of books about guns, bombs,

and related subjects. Thus the books’ contents contributed

nothing to the truth finding process. The McCrea opinion

does not give any indication as to whether the books in

question bore the defendant’s or anyone else’s fingerprints.

Even if they had, the books would still have been imma-

terial: since McCrea, unlike the case at bar, was not a

conspiracy prosecution, whether the defendant did or did

not associate with other persons was completely irrelevant.

In contrast to the books at issue in McCrea, From the

Movement Toward Revolution had a great deal of pro-

bative value. As one of the three pieces of physical evi-

dence” corroborating Meyer’s and McSherry’s testimony

that Giese associated with the other defendants and the

unindicted co-conspirators, thereby affording him an op-

portunity to enter into an agreement with them, Exhibit

C-49 played an important role at trial. Of course, casual

association, without more, is not proof of participation in

a conspiracy, “but that is not to say that it [is] irrelevant

to the issue. ‘[P]roof of * * * association or acquaintance,

while not alone enough to establish the conspiracy, yet has

sufficient bearing thereon to make it admissible.’ ” William-

son v. United States, 310 F.2d 192, 199 (9th Cir. 1962)

quoting Kanner v. United States, 34 F.2d 863, 866 (7th

Cir. 1929). See also United States v. Armone, 363 F.2d

385, 403-04 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct.

The other two were address lists belonging to co-conspirators

which contained Giese’s name and telephone number. R.T. at 1178,

1292, 1316, 2045, 2049-50,

A-33

398, 17 L.Ed.2d 303 (1966) (“Since agreement is an element

of conspiracy, evidence of association is relevant.”)

Giese contends that even if evidence of association does

have probative value under some circumstances, it had no

value here because association was never in dispute: “Dr.

Giese’s acquaintance with each of the alleged conspirators

was conceded; his own direct testimony established that

he had a relationship with each of them.” Brief for Appel-

lant at 45. In effect, Giese argues that the propriety of

the government’s proof of association, which was presented

long before Giese took the stand, should be judged with

the hindsight provided by his testimony on direct examina-

tion. This proposition is obviously without merit. The

prosecution’s evidence is not retroactively rendered inad-

missible because it eventually turns out that the defendant

chooses not t» contest the point. The government had to

prove agreement, and thus association, as part of its

prima facie case. The fact of association was not stipulated

to before trial, so until it heard Giese’s testimony, the

government had no way of knowing whether he would

admit or deny his fraternization with the other conspira-

tors. Association did not cease to be an issue until after

the government had rested; therefore it would be unfair

as well as inaccurate to say the prosecution lacked a

justification for submitting evidence on the questich in its

case-in-chief.

Although the government's use of Exhibit C-49 in its

case-in-chief was limited to proving association, the prose-

cution gained the right to cross-examine Giese on From

the Movement Toward Revolution’s contents when, on

A-34

direct examination, Giese testified about the contents of a

number of books and suggested they were indicative of his

peaceable character.

Giese took the stand in his own behalf and denied sup-

plying his alleged confederates with From the Movement

Toward Revolution and the various explosives and firearms

manuals which had been found in their possession. R.T.

at 1673-76. Had he stopped his testimony about books at

that point, he would not have opened any doors. But he

did not stop. In response to his counsel’s questions, Giese

produced a stack of 18 books and proceeded to describe

them one by one. R.T. at 1676-82.*° All 18 were introduced

into evidence later in the trial and were available for the

jury’s inspection. R.T. at 1918. Some of the items were

“representative samples” of the types of books Giese

stocked in his bookstore, R.T. at 1676; others, including

three books Giese had written, were his personal property

and had been kept at his home rather than at the book-

store.” R.T. at 1678, 1734. None of the books had been

seized by the government; none had been mentioned during

the prosecution’s case-in-chief; none had any connection

with the offenses charged in the indictment. Likewise, the

books were irrelevant to the issue of association: so far as

*°Giese’s introduction of the 18 books during his own case-in-chief

provides another ground for distinguishing his case from United

States v. McCrea, supra. In McCrea the defendant did not offer

books into evidence and suggest that they were indicative of his

peaceable character. Hence the defendant in McCrea, unlike Giese,

did not open the door and invite the prosecution to use the contents

of books for impeachment purposes.

*1Giese prefaced his comments about a couple of his own works

by saying: “The next two we never sold at the bookstore.” R.T. at

1678.

eee ee sink eben

A-35

the record shows, the other conspirators had never even

seen the 18 books, let alone shared them with Giese.

Giese’s direct examination testimony about the 18 books

filled almost six pages of the reporter’s transcript. R.T. at

1676-82. He prefaced his remarks with the statement that

he had not “necessarily read all of these books,” R.T. at

1676, but he left no doubt that he had read many of them.

For instance, he offered a rather detailed exegesis of Fred-

erick Engels’ Dialectics of Nature; he discussed Camus’s

background; and he explained the theses of Pierre Jalle’s

Pillage of the Third World and Andre Gorz’s Strategy for

Labor, A Radical Proposal. He gave brief descriptions of

the contents of Soul On Ice by Eldridge Cleaver, Away

With All Pests: An English Surgeon in People’s China,

1954-1969 by Joshua Horn, Capitalism and Underdevelop-

ment in Latin America by Andre Gunder Frank, Soledad

Brother by George Jackson, Black Elk Speaks by John G.

Neihardt, Viet Nam in Photographs and Text by Felix

Greene, Limits to Growth (a report for the Club of Rome),

and American Radicals: Some Problems and Personalities.

Giese also mentioned Sisterhood Is Powerful, An An-

thology of Writings from the Women’s Liberation Move-

ment by Robin Morgan, Readings in U.S. Imperialism by

K. T. Fann and Donald C. Hodges, and Monopoly Capital,

An Essay on the American Economic and Social Order hy

Paul A. Baran and Paul M. Sweezy. The three works Giese

had written were Artus Desire, Priest and Pamphleteer

of the Sixteenth Century, French Lyric Poetry, and an

article on Camus and Algeria which was published in the

Colorado Quarterly. j

A-36

Giese implied that the 18 books exemplified the kind of

literature he sold, owned, or read, and that the literature,

in turn, reflected his left-wing but nonrevolutionary politi-

cal views. His testimony about the 18 books, unlike his

statements denying that he had sold the books introduced

by the prosecution, was more than just an attempt to

explain away government exhibits. The books were pieces

in the overall mosiae of character evidence which Giese

presented on direct examination. He prefaced his testimony

about books with a detailed account of his invoivement in

various political causes, placing special emphasis on his

participation in peaceful civil rights and anti-war move-

ments. He described how he had grown increasingly con-

cerned during the 1960s about social conditions and the

direction which American foreign policy had taken. At

first he had manifested this concern by taking part in

marches and sit-ins. Then around 1969 he received a size-

able inheritance and decided that the best way to propagate

his political views was to establish the Radical Education

Project bookstore. R.T. at 1666-73. By juxtaposing an

account of his participation in peaceful demonstrations

with an explanation of his reasons for founding the book-

store and a description of the types of books he sold,

owned, or read, Giese portrayed himself as a scholarly,

humane, peace-loving political activist who possessed a

decidediy non-violent character. He told the jurors to

look at his track record. In the past, whenever he had

wanted to bring about a change in government policy, he

had picketed or tried to persuade others by disseminating

the kinds of ideas contained in the 18 books. He

ideas

suggested that, given this personal history, it would have

A-37

been inconceivable for him to have turned to violence in

order to make a political statement.”

Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213,

93 L.Ed. 168 (1948), remains the leading case on the use

of character evidence by a defendant. There the Court,

speaking through Mr. Justice Jackson, said:

“Courts that follow the common-law tradition almost

unanimously have come to disallow resort by the

prosecution to any kind of evidence of a defendant’s

evil character to establish a probability of his guilt.

Not that the law invests the defendant with a pre-

sumption of good character, Greer v. United States,

245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, but it simply

closes the whole matter of character, disposition and

reputation on the prosecution’s case-in-chief. The state

may not show defendant’s prior trouble with the law.

specific criminal acts, or ill name among his neighbors,

even though such facts might logically be persuasive

that he is by propensity a probable perpetrator of the

22In his — argument, Giese’s attorney emphasized that his

client's supposedly pacific character was his principal defense:

“Frank Giese, by geben km. in these peaceful demonstra-

tions during the ’60s, was following in the spiritual leadership,

if you will, of Martin Luther King who believed in nonviolence

as the way of achieving goals and who, again, had been a

student of Mahatma Ghandi, another believer in nonviolence.

“Frank Giese’s spiritual heritage, insofar as working for

change in our society goes, was along the line of peaceful

demonstrations, nonviolent demonstrations. And I suggest to

you that to say that a man who had worked for peace, to say

that Frank Giese is out throwing bombs and bombing recruit-

ing centers, is as illogical, if you will, as saying that Reverend

Martin Luther King was a member of the Black Panther Party.

“The fact of it is just the opposite. Dr. Giese is deducated

[sic] to peaceful change, not violent change. His whole life re-

flected that.”

R.T, at 2083-84.

A-38

crime. The inquiry is not rejected because character

is irrelevant; on the contrary, it is said to weigh too

much with the jury and to so overpersuade them as to

prejudge one with a bad general record and deny him

a fair opportunity to defend against a particular

charge. The overriding policy of excluding such evi-

dence, despite its admitted probative value, is the prac-

tical experience that its disallowance tends to prevent

confusion of issues, unfair surprise and undue

prejudice.

“But this line of inquiry firmly denied to the State

is opened to the defendant because character is rele-

vant in resolvirg probabilities of guilt. He may intro-

duce affirmative testimony that the general estimate

of his character is so favorable that the jury may infer

that he would not be likely to commit the offense

charged.

* - * #2 *

“The price a defendant must pay for attempting to

prove his good name is to throw open the entire sub-

ject which the law has kept closed for his benefit and

to make himself vulnerable where the law otherwise

shields him.”

335 U.S. at 475-76, 479, 69 S.Ct. at 218-220.

Giese threw open the subject of his literary tastes and

reading habits when he testified about the specific acts of

selling, reading, and owning the 18 books. Unlike charac-

ter witnesses, who must restrict their direct testimony to

ee SS

Sele Ata ahah telnet nit

A-39

appraisals of the defendant’s reputation, a defendant-

witness may cite specific instances of conduct as proof that

he possesses a relevant character trait such as peaceable-

ness. And “[o]nce a witness (especially a defendant-

witness) testifies as to any specific fact on direct testimony,

the trial judge has broad discretion to admit extrinsic evi-

dence tending to contradict the specific statement, even if

such statement concerns a collateral matter in the case.”

United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir.

1978). Professor McCormick’s treatise states that where

the defendant implicitly invites the jury to infer something

about his character from his description of his background

and conduct, he opens the door to cross-examination on all

reasonably related matters:

“Ordinarily, when courts speak of an accused’s putting

his character in issue, it is assumed that the means by

which he does so is introducing witnesses who testify

to his good character in terms of reputation, or, more

currently, opinion. Note should be taken, however,

that by relating a personal history supportive of good

character, a defendant may be opening the door to

rebuttal evidence along the same line.”

*®Rule 405(a) of the Federal Rules of Evidence, which went into

effect after Giese’s trial, permits proof of character to be made by

testimony in the form of an opinion, as well as by testimony as to

reputation. Rule 404(a)(1) codifies the common law rule prohibit-

ing the prosecution from introducing in its case-in-chief evidence

of a trait of the accused’s character “for the purpose of proving that

he acted in conformity therewith on a particular occasion;” but

where the accused himself offers such evidence, the prosecution

may respond with evidence “to rebut the same.”

A-40

McCormick’s Handbook of the Law of Evidence $191, at

59 (2d ed. Supp. Cleary et al. 1978).**

Because character testimony alone may be enough to

raise a reasonable doubt, defendants traditionally have

been afforded considerable latitude when they testify

about their personal histories. Sometimes they commit tac-

tical blunders. We are cognizant of the limitations inherent

in the use of literature as proof of character, and we do

not applaud the strategy employed by Giese and his attor-

ney. Nor do we bestow our imprimatur on the concept of

trial by books. Nevertheless, the question before this court

is not whether we think books are a persuasive form of

character evidence; the issue is whether the government

had a right to respond once the defendant had, of his own

volition, chosen that method of proving he was a peace-

able, law-abiding individual.

It is well-settled that the admissibility of character evi-

dence “depend[s] on numerous and subtle considerations

difficult to detect or appraise from a cold record, and there-

fore rarely and only on clear showing of prejudicial abuse

of discretion will Courts of Appeals disturb rulings of trial

courts on this subject.” Michelson v. United States, supra,

335 U.S. at 480, 69 S.Ct. at 221. Moreover, a trial judge

has considerable discretion in determining what lines of

cross-examination are reasonably related to the subject

“See, e. g., United States v. Bowe, 360 F.2d 1, 14 (2d Cir.) cert.

denied, U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966) (In

rosecution for conspiracy to blow up Statue of Liberty, where

dehimdens on direct examination “placed his character in issue and

attempted to portray himself as opposed to all forms of violence,

it was On cross-examination to question him concerning the

guns (found in his possession] and introduce them, for the purpose

of rebutting, i. e., contradicting his self-portrait.” )

FS aos

RMS NE

A-41

matter of the witness’ direct testimony. United States v.

Higginbotham, 539 F.2d 17, 24 (9th Cir. 1976); United

States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976). The

judge’s ruling on the scope .of proper cross-examination

should not be interfered with on appeal unless he has

plainly abused his discretion. Lewis v. United States, 373

F.2d 576, 578 (9th Cir.), cert. denied, 389 U.S. 880, 88 S.Ct.

116, 19 L.Ed.2d 173 (1967).

Justice would not have been served had the jurors been

left with only the one-sided impressions created by Giese’s

18 innocuous books. To show the opposite side of the coin,

as it were, it was fair for the government to cross-examine

Giese on other books he had so'd, owned, or read. From

the Movement Toward Revolution was such a book. It is

true that Giese did not keep From the Movement Toward

Revolution in stock at the bookstore, but he did not sell

all of the 18 books there either. However, there is no doubt

that Giese read and owned From the Movement Toward

Revolution. In addition to handling and perhaps reading

Severin’s copy of the book, Giese possessed his own copy,

portions of which he had read.” Given Giese’s fairly exten-

*°On direct examination, Giese volunteered that he possessed his

own copy of From the Movement Toward Revolution. Until Giese

and his lawyer brought up the subject, nothing ' ad been said about

books belonging to Giese’s personal library. ‘Tie prosecution had

referred only to Severin’s copy of the book, Exhibit C-49, which

bore Giese’s fingerprints. See R.T. at 672, 996, 1290-1291, 1510-14

and slip op. pages 1434-1436, page .... supra. Giese made the

following statements on direct examination concerning his owncer-

ship of a copy of From the Movement Toward Revolution:

“Q_ [by Mr. Paulson, Geise’s attorney] Did you ever carry

or * in the bookstore From the Movement Toward Revolu-

tion

A_ [by Geise] I believe not.

Q Did you ever own a copy of that book yourself?

A-42

sive contacts with the book, we hold that the court below

did not abuse its discretion in permitting the prosecution

to inquire about From the Movement Toward Revolution

on cross-examination.

The court also correctly overruled Giese’s objections that

the book’s contents were irrelevant and hearsay.** From

I did.

Do you still own a copy of that book?

I believe so.

Where did you purchase your copy of that book?

I think it was J. K. Gill is the biggest book seller in Port-

land, Oregon. It’s commercial.”

R.T. at 1674. On cross-examination, Giese acknowledged that he

had read portions of his copy of From the Movement Toward

Revolution. R.T. at 1765. Giese’s copy was not introduced into evi-

dence.

*°The objections were raised when the prosecutor asked Giese

to read aloud portions of the book. We reproduce below, in its en-

tirety, the government's cross-examination of Giese on From the

Movement Toward Revolution:

“Q [by prosecutor Turner] Mr. Giese, I would like to show

you what has been marked, entered into evidence as Govern-

ment's Exhibit C-49. Do you recognize that book, sir?

A [by Giese] Well, I don’t recognize the copy necessarily.

I recognize the—

POrPrOD Ye

Q Not that particular copy but the book itself?

A Yes. I recognize the book.

Q Now, you testified that you have a copy of that book?

A I believe I still have a copy of the book.

Q Can you identify the title for the Court and the jury?

A From the Movement Toward Revolution. ae pe om

Q And have you read the book? ae

A i have read snatches of it. ae

Q Would you like to, you-icard Mr. Ranels testimony that

some nine of y gerprints appeared on various pages of

this particular book?

A Yes.

Did you ever give this book or one like it to any mem-

ber—either of the people on trial or Mr. Cronin, wallace or

Akers, Leslie McKeel, Max Severin, Robert McSherry, Lynn

Bruce Meyer?

A-43

| the Movement Toward Revolution was relevant for the

dual rebuttal purposes of contradicting Giese’s character

| evidence and impeaching his veracity as a witness. The

passages he was asked to read were not hearsay because

A I don’t believe so.

Q Now, would you turn, Mr. Giese, with me to Roman

numeral VIII at the beginning of the book, that is the intro-

duction of the book, the preface?

A Okay. 8.

Q I would like to ask you to read—sorry, I mean 13.

A No. I believe it’s—is it 13, it’s XIII.

Q Thank you.

A It’s XIII.

MR. PAULSON [Giese’s lawyer]: Objection. It’s hearsay

and to my knowledge, he has not been arged with having

read books but with acts in this case of —

THE COURT: Overruled.

(By Mr. Turner) Directing you attention, Mr. Giese, Roman

[ numeral number 8?

{i A You mean Roman numeral 13?

if A All right. Roman numeral 13. Can you read for us that

para “% e are all involved in the early stages’-—do you

see that

A A paragraph beginning where?

| _-& Right there—yes.

A Maybe I am on the wrong page—it is 8.

THE COURT: Mr. Turner, we will have the bailiff hand

the book to you. It could be a different text or edition.

Q I don't think so, Mr. Giese, we can move on to some-

thing else.

Mr. Giese, would you look at Page 166, the last paragraph

oo Se lower right-hand side, I have got a little check mark

;

| A Yes.

| Q Do you see that, sir?

A Yes, I do.

Q Could you read that particular paragraph for us and con-

tinue on?

A ‘We are sorry to—

MR. TURNER: Mr. Giese, there is an objection.

THE COURT: Wait a minute.

7 MR. PAULSON: May I have an objection?

A-44

they were not introduced to prove the truth of the matter

asserted (i. e., that violent revolution is a desirable way

to bring about social and political change.)

Giese claims the prosecutor “forced” him to read in front

of the jury, an act he says unfairly prejudiced him. The

record shows, however, that Giese was not forced to do

anything. He did not protest when the assistant U. S. attor-

ney asked him to read a particular passage. Neither his

aren nor any other defense attorney objected to the act

of reading as such. Giese was no more “forced” to read

froin the book then is a witness who is asked to read a prior

inconsistent statement to the jury. If the witness demon-

strates an unwillingness to do the reading—and no such

THE COURT:You may have a continuing objection. Please

proceed.

A You want to read it aloud? “We are sorry to hear that

the townhouse forever destroyed your belief that army [sic]

struggle is the only real struggle. hea ae us in a unique

position because, as Che stated, “armed struggle is the only

solution for le who fight to free themselves” and we have

lost iadtiel comrades.’

Do you want me to go on?

ape po d revolutionary has, but

‘Also probably every experienced revolutionary has, bu

ms Pes at stake alie the alka some will die, others will

replace them or us.’

Q Will you continue to the end of the paragraph.

A I am trying to make sense out of that sentence. All right.

‘Others will replace them or us like rr rapping about end-

ing racism, colonialism, sexism and all of the other pigisms,

exploitation and all that but these things can = be ended

by revolution and revolution is in the final analysis armed

struggle, revolution is violence, revolution is war, revolution is

bloodshed. How long have different successful national libera-

tion fronts fought before they have won large popular support.

MR. TURNER: Thank you. Your Honor, subject to our

previous discussion, I have no further pocg a pl

.T. at 1765-1768. The passage Giese read came from pages

a 167 of Severin’s pent of From the Movement Toward Revolu-

lution; both pages bore Giese’s fingerprints. See note 17 supra.

See ae

en ee a et

A-45

unwillingness was shown here—the prosecutor can simply

read the document to the jury himself.

The trial judge is accorded considerable discretion in

deciding how evidence should be presented, just as he is

given substantial discretion in determining what evidence

should be received. In both instances, he must balance pro-

bative value on the one hand and degree of prejudice on

the other. United States v. Robinson, 560 F.2d 507, 515 (2d

Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct.

1451, 55 L.Ed.2d 496 (1978), held that “the preferable rule”

in reviewing a district court’s decision on the question of

unfair prejudice “is to uphold the trial judge’s exercise of

discretion unless he acts arbitrarily or irrationally.” The

reason for granting such broad discretion to the trial judge

is that

“he is in a superior position to evaluate the impact

of the evidence, since he sees the witnesses, defendants,

jurors, and counsel, and their mannerisms and reac-

tions. [Citation omitted.] He is therefore able, on the

basis of personal observation, to evaluate the impres-

sions made by witnesses, whereas we [appellate

judges] must deal with the cold record.”

Id. at 514.

United States v. Doremus, 414 F.2d 252 (6th Cir. 1969),

sets forth a useful test for determining whether requiring

a defendant to perform a given act on the witness stand

unjustly prejudices him. Impermissible prejudice results

when “the requested performance or demonstration would

unjustly humiliate or degrade the defendant” or “such

performance would be damaging to the defendant’s image

A-46 |

and irrelevant to the issue on trial.” 414 F.2d at 254. Giese

suffered no such injuries. Whereas some acts-—such as a

forced reenactment of an especially shocking crime—might

degrade a defendant beyond repair, in this case Giese’s

attorney could easily have mitigated whatever damage

resulted from the act of reading by simpiy asking his client

on re-direct whether he agreed with what the book said.

For reasons which are not apparent in the record, no such

rehabilitative effort was made. But in any event, the act

of reading probably did not significantly injure Giese’s

defense. In some ways, having Giese read the passage was

actually less prejudicial than having the prosecutor or a

witness do it. Giese was free to read in whatever tone he

pleased. He could emphasize some words and skim over

others. Had he read the excerpt, the prosecutor might have

stressed its more violent parts, whereas Giese was able to

read it in a monotone if he wished. By reading the extract

himself, Giese could and did express unfamiliarity with

the ideas contained therein. After reading a few lines, he

paused and said “I am trying to make sense out of that

sentence.” R.T. at 1768. See note 26 supra. In so doing, he

suggested that he had not absorbed and adopted the revo-

lutionary arguments set forth in the book. Allowing ‘tiese

to choose the tone in which the contents of From the Move-

ment Toward Revolution were communicated to the jury

could only have diminished, not increased the book’s preju-

dicial impact.

Even if the act of reading did hurt Giese’s cause to some

extent, the prebative value of enabling the jury to observe

his demeanor while he was being impeached outweighed the

prejudicial effect. The “requested performance” was clearlv

A-47

relevant to an important issue in the case: Giese’s credi-

bility. It is axiomatic that jurors are entitled to see how

the witness reacts when the cross-examiner catches him in

a contradiction or exposes one of his falsehoods. “?’he de-

meanor of the witness on the stand may always be con-

sidered by the jury in their estimation of his credibility.”

IIIA Wigmore On Evidence § 946, at 783 (Chadbocrn rev.

1974) (emphasis in original). Evidence is normally taken

by means of viva voce testimony of witnesses rather than

by written depositions because it is considered crucial for

the judge and jury “to obtain the elusive and incommuni-

cable evidence of a witness’ deportment while testifying.”

V Wigmore On Evidence § 1395, at 153 (emphasis in origi-

nal),

In light of these factors, we hold that the court below

did not act arbitrarily or irrationally or otherwise abuse its

discretion by failing to rule sua sponte that the act of hav-

ing Giese read from the book unfairly prejudiced him.

Giese’s First Amendment argument, which he did not

assert by way of a timely objection or request for instruc-

tions at trial, is without merit. Having opened up the

subject of his political and literary interests, Giese was

not entitled to be selective in describing the contents of

his books any more than the defendant in United States

v. Hearst, 563 F.2d 1331 (9th Cir, 1977), cert. denied, 435

U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978), was entitled

to be selective in describing what she did between the time

she was kidnapped and her arrest. A defendant “ ‘has no

right to set forth to the jury all the facts which tend in

his favor without laying himself open to a cross-examin-

ation upon those facts’.” Rrown v. United States, 356 U.S.

A-48

148, 155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958). See also

United States v. Lustig, 555 F.2d 737, 750 (9th Cir.), cert.

dented, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977).

Just as a “defendant who takes the stand in his own behalf

cannot then claim the [Fifth Amendment] privilege against

cross-examination on matters reasonably related to the

subject matter of his direct examination,’ McGautha v.

California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.

2d 711 (1971), one who raises the issue of the kind of books

he sells, reads, or owns should not be able to invoke the

First Amendment as a bar to cross-examination along the

same lines.

B. Co-conspirator Meyer’s testimony concerning Giese’s

participation in political discussions and recom-

mendation of books

Without objection Meyer testified that during a discus-

sion session with prison inmates Giese offered to send

prisoners “free Communist or Socialist literature,” R.T.

at 951, and he discoursed on topics such as domestic revolu-

tion, radicalism, black liberation, Hitler, and the war in

Vietnam. R.T. at 953. Without objection Meyer alluded to

political discussions at the Radical Education Project

bookstore and testified that Giese talked with him about “a

pamphlet called ‘Manual on Urban Warfare’ by Carol

Maragala,” R.T. at 956, during a visit to the bookstore

shortly after his furlough from prison in late November

1972. Over the defense attorneys’ hearsay and relevancy

objections, the court permitted Meyers to testify that dur-

ing a meeting at the prison Giese “advocat[ed]” George

Jackson’s Blood In My Eye, a book which, according to

Meyer, dealt with “urban warfare in American cities.”

BR patos. - be

= No atone Se

A-49

R.T. at 953-54. Giese claims the trial judge erred in over-

ruling the objections, and he further argues that the testi-

mony about his participation in political discussions and

his recommendation of certain books was irrelevant and

infringed his First Amendment rights.

The hearsay question must be analyzed at two levels.

At the first level, we have Giese’s out-of-court statement

recommending the book; at the second we have the author’s

out-of-court statements concerning urban warfare (as

summarized by Meyer). Giese’s comments about Blood In

My Eye were not hearsay at all; they were admissions.

See Fed.R.Evid. 801(d)(2)(A). There was no hearsay at

the second level, either. Meyer’s summary of the author’s

Statements was not introduced to prove the truth of the

matter asserted, i. e., that urban warfare is taking place

in American cities, but rather to show that Giese’s recom-

mendation of a book on that topic had an impact on one

of his listeners (it whetted Meyer’s interest in radical

politics and literature, which was one of the factors that

caused him to join the group at the bookstore). See United

States v. Mesarosh, 223 F.2d 449, 454-55 (3d Cir. 1955),

rev'd on other grounds, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1

(1956) (witness’ testimony that defendant read H istory of

the Communist Party of the Soviet Union to class held not

hearsay). See also McCormick On Evidence § 249 at 589-90

(2d ed. Cleary et al. 1972).

The trial judge’s ruling on the irrelevancy objection was

also correct. Evidence relating to Giese’s statements about

books and politics was relevant because it provided the

jury with information about his relationship with many

of the people who subsequently became his co-conspirators.

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Like the fingerprints on From the Movement Toward

Revolution, Meyer’s testimony shed light on the conspira-

tors’ association with each other. It also tended to show

that Giese exercised a leadership role vis-a-vis the other

conspirators. By conducting diseussions on a topic of

mutual interest—radical politics—and by furnishing or

recommending books on that subject, Giese attracted Meyer

(and perhaps his fellow prisoners Severin and Wallace)

to the group at the bookstore which eventually formed

the conspiracy.

Meyer’s testimony was not unfairly prejudicial. In fact,

the government took steps to ensure that the jury did not

draw improper inferences from evidence relating to books

and political beliefs. In his Summation, the assistant

United States attorney reminded the jurors that Giese

and his co-defendants were not on trial for reading or

possessing certain types of literature or for subscribing

to a particular political philosophy.” Our scrutiny of the

record convinces us that the government used Meyer’s

testimony solely for permissible purposes and not to prove

that Giese had a violent character or to induce the jury

to punish him for reading and recommending radical

literature. Accordingly we hold that Giese’s First Amend-

ment rights were not violated.

*?The prosecutor told the jury:

is case is not about political repression; this is not a case

where the Government is game against people because of

what they think or what they read. This case is not about the

Vietnam War. The Government has not proceeded against

people because at one point in time they may have been

against the Vietnam War.

R.T. at 2025.

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C. Post-Conspiracy Statements and Conduct

The government’s case against Giese relied in part upon

the testimony of Leslie Rosen, a legal assistant to her

husband, Michael Rosen, who represented one of the con-

spirators. Ms. Rosen testified that on or about September

7, 1973, subsequent to the conspiracy but prior to appel-

lant’s indictment, she, Giese, and Ross Brown, an attorney

for unindicted co-conspirator Severin, met in Brown’s

office. She stated that Brown told Giese that Severin had

informed him that Giese was “the leader and the planner

of all of the illegal activities”; Brown also stated that he

knew Giese was a participant in the attempted break-in at

Keller’s house and the driver of “the getaway car” used

in the second bombing. Giese “just nodded and smiled” in

response to these accusations. According to Rosen, Giese

then stated that the Keller incident “hadn’t gone as

smoothly as planned,” and that “he had his passport ready

but that he wasn’t really concerned because it would be

his first offense and even if he had to go to prison he felt

that he could handle it.” Out of Brown’s presence, Giese

told Rosen that “this [had] been an abortive mission from

the beginning,” and that the conspirators *hadn’t followed

his directions, that it had snowballed, that he had lost

control and he specifically said that the people that were

in prison for the robberies had really fouled up his plans

and if they had done it the way he planned it, they wouldn’t

have been caught.” R.T. at 1551-54,

Giese’s verbal admissions to Rosen about his role in the

conspiracy clearly were admissible, see Fed.R.Evid. 801(d)

(2)(B), and he does not contend otherwise. He does argue,

however, that the district court erred in admitting Brown’s

A-52

accusations, which he claims contained multiple hearsay.

We disagree. Neither Brown’s accusations nor Severin’s

alleged statements were offered to prove the truth of the

matter asserted, that is, appellant’s actual participation in

the conspiracy. Rather, they were used merely to lay the

foundation for a showing of Giese’s failure to deny them.

See Anderson v. United States, supra, 417 U.S. at 219-21,

94 S.Ct. 2253. Giese’s ancillary argument that admission

of Severin’s out-of-court statements violated his right of

confrontation is equally unpersuasive. Since the govern-

ment did not offer the statements for their truth, Giese

had no interest in cross-examining Severin. Jd. at 220, 94

S.Ct. 2253.

Rule 801(d)(2)(B) of the Federal Rules of Evidence

provides that a statement is not hearsay if the party

against whom it is offered “has manifested his adoption

or belief in its truth.” In United States v. Moore, 552 F.2d

1068, 1075 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96

S.Ct. 775, 46 L.Ed.2d 637 (1976), we stated:

“The general rule concerning admissions by silence or

acquiescence is well established. When an accusatory

statement is made in the defendant’s presence and

hearing, and he understands and has an opportunity

to deny it, the statement and his failure to deny are

admissible against him.” :

An admission by silence should be introduced into evidence

only after the district court has fulfilled certain responsi-

bilities :

“Before admitting the proffered admission by silence,

the trial judge must determine, as a preliminary ques-

A-53

tion, whether the statement was such that under the

circumstances an innocent defendant would normally

be induced to respond.” Jd. at 1075.

The court should determine that sufficient facts have been

introduced for the jury reasonably to conclude that the

defendant heard, understood, and acceded to the state-

ment. Jd. at 1076. This should be only a preliminary or

threshold determination, however, for the jury is primarily

responsible for deciding “whether in the light of all the

surrounding facts, the defendant actually heard, under-

stood, and acquiesced in the statement.” Jd. at 1075.

Giese maintains that the admission of Rosen’s state-

ments as to his silence in the fact of accusations did not

satisfy these standards. He points to Brown’s statement

prior to his accusations that he did not want admissions

or denials from Giese and to Brown’s testimony at trial

that appellant denied his guilt after the accusations. Giese

contends that Brown’s testimony contradicted Rosen’s,

making it uncertain whether he ever acknowledged guilt

and compelling the district court to keep evidence of the

alleged admission from the jury.

Brown’s performance at the trial revealed him as a man

of limited credibility, however. His statement about Giese’s

protestation of innocence conflicted with his grand jury

testimony, in which he stated that “[a]t no time did Frank

Giese deny any of the things which I said to him.” R.T. at

1613. Throughout his testimony, Brown hesitated, con-

fessed to a poor memory of the events in question, and

gave ambiguous answers. Even if we can believe his state-

ment that he told Giese not to respond to his accusations,

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the evidence was strong enough to support a reasonable

inference that appellant admitted his guilt by

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