# Petition — Giese v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0759%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 979 ## Text “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 I 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 II 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 il 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 3 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 4 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. 5 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 6 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. 8 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 9 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. 12 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 13 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. 14 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. 15 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, 16 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). 17 REASONS FOR GRANTING THE WRIT I 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. 18 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. 19 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 20 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 21 (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. 22 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. a 23 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- 24 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. II 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. 25 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. 26 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 27 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. 28 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. | 29 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- 30 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 31 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. 32 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 33 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. 34 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!- 35 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 ). 36 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, v. 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. I 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 ee 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. ee 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 I 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 IV 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. V 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 VI 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