United States v. Frank Stearns Giese

Before, TRASK, Cir HUFSTEDLER SWEIGERT,* Judges, District cuit Judge.

TRASK, Judge: Circuit appeals Frank Giese from his Stearns conviction for to commit of- against fenses the United We af- States. firm.

I 2, 1973, Early morning January on the Navy a a exploded bomb at United States Portland, recruiting Oregon. center in Two days Army recruiting later a United States dynamited. city center in that These perpetrated acts of terrorism were in fur- well-organized conspiracy, therance of a objects of which were to dramatize the con- spirators’ opposition participa- to America’s Francisco, Weinberg, Cal., Doron San for disrupt tion in the Vietnam War and to defendant-appellant. military operations in Portland area. Lezak, Sidney Atty., I. U. H. S. Charles played showed that Giese a evidence Turner, Portland, Or., Atty., Asst. U. S. for leading conspiracy. role plaintiff-appellee. Giese, professor of French at Portland University, met some of his co-eon- State As rehearing amended on denial of spirators through the Radical Education rehearing en banc Project he bookstore which founded in the March prisoners fall of books to at 1971. He sent Institution, Oregon State Correctional Cronin, 1972 he and James January and in * Judge Sweigert, Honorable States District for the Northern William T. Senior United District California, sitting designation. Severin, Wallace, bookstore, McSherry, and Akers began also worked at the who house, at discussion sessions enter the an alarm sounded leading group tried to participants included prison. The inmate everyone following day fled. The Giese Severin, and Chester Meyer, Max Lynn Severin, McKeel, Wallace, Akers, with met at Meyer contacted Giese Wallace. apart- at Cronin’s Cronin and two others released after he was shortly bookstore abortive Keller They ment. discussed in November 1972. prison furlough on from blamed their failure on burglary, and Giese one people, him to various Giese introduced gross planning. lack of She, turn, McKeel. of whom was Leslie conspirators’ act of violence was next McSherry, Robert Meyer introduced care. While arranged greater McKeel, Akers, several others. James Cronin, and Akers studied a book McSherry, Akers, operat- jointly and Cronin McSherry, Blaster’s Handbook to learn called the Painting Meyer Company. ed the Sundahl McKeel bombing techniques, Severin and company after receiv- went to work for the dynamite. January some On obtained December 1972. The ing parole on Cronin, Akers, 1973, Wallace, Meyer and meetings employees held business Sundahl Navy recruiting McSherry committed the book- political discussions at Giese’s bombing. There is no evidence that center Severin, along with Akers and Cro- store. January actively participated nin, part-time. worked there However, bombing. at a four-hour 2nd Meyer govern- were the McSherry and apartment January meeting held at his principal witnesses at trial. Accord- ment’s 3, 1973, expressed approval of what the ing McSherry, the discussions done, although he criticized bombers and elsewhere centered around bookstore selecting target in a low-income them participants’ opposition vehement suggested that terrorist neighborhood. He Eventually they grew War. tired Vietnam recruiting centers activities directed talk; doing nothing but decided Portland or white sub- downtown direct action. On there was a need for support. popular win Wallace, urbs would more McSherry, December that the next Severin, McKeel, Akers, When he was informed bomb- Meyer, two recruiting meeting ing target Army center— others held a five-hour at Giese’s —an criteria, take greeted agreed farm. them but did not to take Giese satisfied his Giese as part They agreed, in the discussion. operation. part, helped plan and he to it, within McSherry put everything “to do enough promised He also his confederates war, disrupt the power stop to to a money buy [their] to a vehicle and rent hideout far as went and war for at least as Portland ammunition, and sto- storing explosives, R.T. at [they] possibly as much as could.” weapons. len Believing necessary to 547. violence was McSherry Meyer early testified that and end, accomplish they bombing this discussed 4, 1973, January morning Giese on centers, recruiting robbing National Guard Army recruit- drove them and Akers to depots, and other crimes. in his car while ing center. Giese remained yet agreed had not to stage At this Giese planted explosives McSherry and Akers operations. Need- conspirators’ finance the Meyer carried a Meyer and stood watch. ing buy weapons, they money with which to Giese, given by and Giese was pistol him plan burglarize devised a to the residence of revolver. Their with a .38 caliber armed wealthy a industrialist named Ira Portland accomplished, Giese drove the mission attempted place break-in took Keller. The they apartment where bombers back to his days two after on December learning that the bomb celebrated after had become meeting at Giese’s farm. Giese exploded. in full-fledged participant McSherry Meyer testified and McSherry, he by According this to time. money given them used conspirators conspirators to drove several of his fellow Ankeny on apartment rent an in a van. When Giese to the Keller residence rented co-conspirators. Giese unindicted they used as a in Portland which Street IV gave of the counts. Count Meyer said Giese also named six headquarters. felony firearms, including misprision an M—1 with charged them carbine. him McKeel, 2, 1973, recruiting 8,1973, (the Navy cen- January January Giese met with On Akers, Severin, Wallace, McSherry through VIII Meyer, bombing). V ter Counts Ankeny apart- committing various of- charged and Cronin at Street him with gun rob a They plans January ment. discussed to connection with fenses in According McSherry, store. to Giese told recruiting bombing, center in- Army much, trying devices, too too them do of destructive cluding possession soon, urged split up go and he them to and government prop- malicious destruction underground for a while. When some of erty, carrying firearms the commis- go indicated their intention to the others government felony, injury sion and gun robbery, ahead store Paragraph property worth more than $100. participate. McSherry refused to He saw X, alleged a violation of one of Count 13, 1973, again January and the others Giese, 371,1 said the other de- U.S.C. § Ankeny apartment outside the and Street fendants, co-conspirators the unindicted and at his farm. Giese was told the con- unlawfully, wilfully knowingly “did spirators arming would themselves in the be confederate, combine, agree conspire, future, again urged go them near and he together and with each other ... shows, underground. far as the record So commit and cause to be committed certain part gang’s Giese did not take rob- against the and oth- offenses United States Carey bery of the Allison and Gunworks persons er and institutions means of acts 15, 1973, January robbery Portland on their violence, disruption, in- terrorism and bank, of a their plot to rob a restaurant and damage cluding explosives the use of office, aup blow sheriff’s or their other damage destroy attempt and to and de- crimes. personal property, real and stroy certain including prop- public private, both

II erty II and VI of this described Counts 28, 1974, February realleged incorpo- grand On a federal Indictment which are Oregon for the District of returned a rated herein reference.”2 Count II al- Giese, joint charging leged Navy ten-count indictment the malicious destruction of the Cronin, Akers, Meyer, recruiting alleged and Wallace with a center and Count VI McKeel, variety listing Army of offenses and recruit- malicious destruction Severin, person McSherry, ing and one other center.3 provides part: alleged the commission of thirteen overt acts in Title 18 U.S.C. § conspiracy. The overt acts persons conspire furtherance of “If two or more either to holding meetings, going to any included: various against commit the offense residence, going States, States, to the Ira Keller’s Columbia or to defraud the United or (where tested), go- explosives any agency any any River levee were thereof in manner or for stations, ing recruiting possessing purpose, persons to the de- and one or more of such do devices, call, receiving telephone any object conspiracy, structive a act to effect the of the preparing objectives. $10,000 a and list of each shall be fined not more than or imprisoned years, not more than five both.” alleged: II 3. Count 2, 1973, January Paragraph alleged at Port- two of X that it was “That on or about Count land, part Oregon, conspiracy Oregon, of the for the named defend- in the District of AKERS, co-conspirators ants and the unindicted to JAMES WESLEY . . . JAMES CRONIN, MEYER, carry bombings. LYNN firearms the Para- ARTHUR BRUCE graph part conspiracy the WAL- three said it was of ... and CHESTER BENSON LACE, herein, dynamite by for defendants them to obtain and various com- . . . ponent parts explosive, maliciously an did dam- to be used to make destructive means of charged age destroy attempt damage Paragraph devices. four and it was and and to part conspiracy destroy building personal proper- also of the for them make and other a ty wholly possessed, and cause to be made destructive devices to be used and leased the Administration, bombings. Paragraph agency used the four further an General Services against him and of the acсusation of notice trial, Meyer plea entered Prior guilty ver- jury to return a the permitting agreed and conspiracy charge guilty to violating federal on conduct not dict based government witness. Con- testify as attacking arguments makes three law. He Wallace charges against Akers and spiracy conspiracy of count. sufficiency dismissed, mispri- IV the Count charge against Giese. On October sion First, he asserts that the indictment Wallace jury found Akers and specify adequately the offenses failed I III and Counts through on Counts guilty object conspiracy. which were guilty on through V VIII found Cronin incorporation of says the indictment’s He III X. The through I and Count Counts (the bombings) detailed offenses the federal through V acquitted on Counts jury Giese II and VI not exhaust in Counts did (con- X guilty found him on Count VII but could object on which the offenses did not file his spiracy). Because Giese the indict- conviction since have based its time, this court severed to crimes appellate brief contained references ment also de- appeals persons the other institutions” and against his case from “other private” August “public we affirmed to the destruction fendants. On property. convictions part part and vacated in Akers, Cronin, and Wallace. Cronin’s conveys A indictment well-drafted was affirmed. conspiracy for conviction In important information to a defendant. Akers, United States States, 749, 763- v. United 369 U.S. Russell 1976). 1038, 1047, (1962), 8 L.Ed.2d the two stan conspir- Supreme Court outlined challenging his In conviction of an indict adequacy six dards acy, separate Giese raises issues: ment is to be evaluated: (1) legal- X of Was Count the indictment first, are, whether the “These criteria ly sufficient? indictment ‘contains the elements (2) denying Did the district court err charged, intended to “and suf- offense be particulars? motions for bills of what ficiently apprises the defendant of (3) the voir ade- Was dire examination ’ meet,” prepared he must be quate? ‘ “ proceed- ‘in secondly, case other (4) admitting Did the court err in certain a similar taken him for ings are evidence? offense, shows with whether the record (5) Were the court’s instructions plead a accuracy may what extent jury erroneous? acquittal or conviction’.” former [Cita- (6) government reversi- ” Did the commit tions omitted.]’ prosecutorial acts of misconduct? ble charging under An indictment requirements 371 satisfies these § U.S.C. Ill which are alleges the three elements if it agreement, contends that his convic- “the Appellant gist of the offense: conspir- object agree- which the tion must be reversed because towards unlawful directed, act in fur- acy charge against vague him was and an overt ment overbroad, conspiracy.” fair United States thereby depriving him of therance herein, States, explosive, Department defendants means of

of the United and the States, destroy maliciously Navy, Department damage at- and a did and the of the United Avenue, destroy building tempt damage and Port- to and all located at 4008 N.E. Union land, wholly possessed, Oregon; personal Oregon, property in the District of other 2, 18, 844(f) Ad- Services Title and leased the violation of Sections and used ministration, General Statеs, agency an of the United United States Code.” Army, Depart- Department alleged: VI and the Count 1973, States, 4, January at 5030 United all located about at Port- ment of the “That on or Road, Portland, Oregon, land, Oregon, Oregon, Foster . S.E. District GIESE, Oregon; of Sections District of in violation FRANK STEARNS ... 2, WALLACE, 18, 844(f) Title United States Code.” BENSON . . . CHESTER 1178 damage to 341, persons and institutions” and (9th Cir.), Charnay, 537 F.2d 350

v. 1000, 528, un- denied, private” property embraced “public cert. 429 U.S. 97 50 S.Ct. (1976). conspir object 610 Because “the such as the at- specified L.Ed.2d offenses acy gist is the of the crime” in such an tempted burglary of Keller’s home and the indictment, necessary allege “it is not to Carey Gunworks. robbery of the Allison all the precision with technical elements interpretation of the indictment is mis- This of the offense essential to the commission not federal guided. these acts are Since object conspiracy, which of the or to is offenses, it is unreasonable to assume that object state with the detail which such subtle, ambiguous the indictment contained in an indictment com required would be for prop- not references to crimes which could mitting Wong offense.” substantive erly jury. Even if be tried before federal 77, 81, States, Tai v. 273 47 U.S. fatal, did, however, this error was not 300, 301-2, (1927) (cita 71 L.Ed. 545 S.Ct. conspiracy trial for to appellant was not on omitted). tions (specified or commit non-federal offenses indictment). not have not in the He could requirements these Applying basis, he not case, been convicted on this did present reject appellant’s argu we against these vague ment X was and over- have to defend himself Count charges. broad. indictment is not to be read “[A]n manner, in a technical but is be [it] A natural construction of these more according construed to common sense with damage referred words is that appreciation existing realities.” Unit private property located near the recruit- Anderson, 1218, v. 1222 ed States ing which resulted from the excess centers (9th Cir.), denied, 839, cert. S.Ct. explosions. force of the The indictment did (1976). an inter L.Ed.2d 107 Such damage adjoining not to refer to need pretation persuades X us that Count property (and to the individuals who owned appellant’s complaints fears and are illuso it), vagueness but or creat- overbreadth ry. prejudicial. not thereby ed whole, as a X ade- Considered Count object was able to focus on the federal quately apprised grand jury offenses, finding indicated its verdict recruiting center had found two bomb- “conspiracy to commit appellant guilty of ings object offenses of primary to be against the United certain offenses States.” conspiracy. paragraph The first of the at 687. C.T. specifically count referred to these offenses. Second, appellant contends that because following paragraphs three stated offenses which the indictment described part was for the defend- non-federal, likelihood that the “[t]he carry bombings ants to firearms [him], jury improperly convicted at least in and to construct the destructive devices theory conspired he part, on the addition, explosions.4 used in the In almost against persons proper- commit offеnses all the overt acts referred to the indict- evidence, ty by the but not referred to pertained ment to these federal offenses.5 crimes, cognizable quite strong as federal X, reading appellant After Count could . .” He asserts that the trial court’s possibly have been confused about what the failure to focus on federal offenses in government attempt prove at tri- would jury only increased its instructions to States, required al. As by Russell United possibility of a conviction based on non- supra, U.S. at S.Ct. federal offenses. knew object offenses he had to against. .defend convincing. argument This is not established, X of the Appellant language we have Count urges the broad As X offenses “other focused on federal offenses: Count about indictment supra. supra. See note 5. See note merely acy on the that he aided and basis bombings recruiting two centers. in further- Any abetted criminal acts committed reference to non-federal offenses were than Furthermore, conspiracy, partici- ance of rather harmless. the superfluous and the assuming pating conspiracy.” even that the indictment em- as a member of offenses, the braced inclusion of non-federal interesting Appellant’s theory is conspir- in a federal a non-federal offense based on that is not a his contention if acy permissible conspir- is indictment conspire “to federal offense to cause to be acy also “A sin- involves federal offenses. against crime United committed” a may purposes, have several gle conspiracy erroneous, is His contention how States. if or primary but them —whether one of ever, reading simple as statutes violation of a federal secondary the—be charge conspiracy involved demon law, conspiracy is unlawful under feder- government proper strates. of Destruction States, v. United al law.” Anderson explosive is a ty by of an violation of means 2253, 2263, 41 L.Ed.2d 844(f),6 alleged in 18 U.S.C. as Counts II § (1974). VI of Conspiracy the indictment. “to conspiracy such a is A conviction for against commit” any offense United valid as the court’s in long as instructions 371; States is a of 18 U.S.C. this § violation jury guilt form the the defendant’s alleged violation in Count X. was Since agreement must be based on his to commit property government destruction of ex conspiracy’s objectives least one of plosives against is offense an United violating law. See United federal States States, clearly illegal conspire it is “to (2d Gallishaw, 1970). commit” this act. the jury trial court instructed that the prove government required ap 2(b) provides that Title 18 U.S.C. § pellant conspired to commit federal of causes an act willfully to be “[w]hoever this adequacy fenses. The of instruction performed by directly done which if him or (and appellant’s an answer to assertion against another would be an offense conspiring he was of to commit convicted States, punishable principal.” as United offenses) jury’s non-federal is shown with 18 Combining this statute U.S.C. verdict, appellant guilty which found 844(f), it is a of it follows that federal § commit certain offenses “conspiracy to person destroy fense to cause another against the United C.T. at 687. States.” government property by explo means an Third, offense appellant objects against sive. this act is an section Because States, alleged the indictment which that he con- it also follows that it is United spired conspire 371 to “to illegal “to commit and cause be commit- under 18 U.S.C. § ted the destruction of certain offenses cause to be committed” n Thus, explosives. government After stating property . . ..” “[tjhere participated appellant is no such federal offense as con- even if had not di 4, 1973, spiracy rectly January bombing, and abet the of a to aid commission crime or to cause the him on X conspiracy jury commission could have convicted Count crime,” in a argues participation of a words because this “cause cause act of de impermissibly to be committed” “al- “to to be committed” conspir- lowed struction. to convict [him] imprisoned 844(f) provides: for not more than

6. Title anee shall be § U.S.C. $10,000, years, more than or ten or fined not maliciously damages, “Whoever or de- both; injury personal be if results shall stroys, damage destroy, by attempts or or twenty years, imprisoned than for not more vehicle, any explosive, building, means of $20,000, both; or or fined not more than property personal or other or real whole or subject imprison- if death be results shall owned, part by, possessed, or used or years, any or to ment for term of the death States, to, any department leased the United imprisonment provided penalty or to life thereof, agency or institution or or- title.” 34 of this ganization section receiving Federal financial assist- 1180 trial, prepare for 720, cision to enable him to Lupino,

In v. 480 F.2d United States danger surprise denied, 924, avoid or minimize the (8th Cir.), cert. 414 94 724 U.S. trial, plead him to the time of and to enable 257, (1973), the S.Ct. 38 L.Ed.2d 159 defend in bar of another acquittal his or conviction argument by ant a similar contend offered when the prosecution for the same offense “to cause” a felon to ing conspiracy vague, and indefi- indictment itself is too receiving the substantive offense of commit 1202(a)(1)) purposes.” v. (18 U.S.C.App. a firearm is not nite for such United States § 103, (6th 1976). 108 Birmley, 18 371. The court 529 F.2d Cir. violation of U.S.C. § Accord, Andrino, ingenious argument, 501 F.2d concluded that United v. States “[t]his analysis, 1373, (9th 1974); Yeargain in constitutes a futile the final 1378 Cir. v. States, 881, 480 F.2d at 724. (9th exercise semantics.” United 314 F.2d 882 Cir. agree. We 1963). for a bill of The denial of motion particulars is within the discretion of

IV court; dis- its decision will not be district of this discretion. an abuse turbed absent trial, appellant Prior to and his co-de- 1211, Clay, v. 476 F.2d 1215 United States par- fendants made two motions for bills of (9th 1973). Cir. ticulars. The first motion contained over separate requests, 100 and referred to all of the We find that the denial ten counts of the The second indictment. not an abuse of discretion. As motions was requests, motion contained fewer each of III, supra, X of discussed section Count Citing which was related to X. Count vague the indictment was neither nor over- X, “ambiguities and uncertainties” of Count apprised appellant broad. It federal appellant’s asked for a second motion wide charged offense with which he was and of information, range of conspi- such lists of allegedly the overt acts which contributed performed by person ratorial each acts conspiracy. participation to his “To named in the and of each indictment overt the extent that the indictment or informa object act conspiracy. of the His first provides alleged details of the tion itself specific motion asked for even more infor- offense, is, course, particulars a bill of mation, such as how each of the 13 overt unnecessary.” 8 Moore’s Federal Practice acts described in X contributed Count (2d 1978). ¶ at 7-31 n.1 ed. Further 7.06[1] conspiracy and which oral statements made more, provided appellant government conspiracy. the defendants created the information, includ large with a volume of Reiterating theory advanced section trial, ing physical grand evidence offered at III, supra, that Count X of the indictment re jury testimony, and memoranda which overbroad, vague argues he now government’s theory vealed the of the case. that the court’s denial of these motions was discovery Full also obviates the need for a reversible error. particulars. Clay, v. bill of United States 1215; supra, 476 F.2d at 8 Moore’s Federal 7(f) Rule Rules of Federal ¶7.06(1) at 7 — 33. Practice provides Criminal Procedure for a bill of particulars: appel The information available to may filing “The court direct the of a right actually lant was more than he had particulars. bill of A motion for a bill of demand, requirement for there is no particulars may arraign- be made before government cases that dis days arraign- ment or within ten after all the overt in furtherance close even acts ment or at such later time as the court conspiracy. United States v. Mur may permit. particulars may A bill of be 401, 1976); ray, 527 F.2d 411 Cir. Unit subject amended at time to such con- 49, Armocida, (3d ed 515 F.2d 54 States justice requires.” ditions as denied, Cir.), cert. 423 U.S. S.Ct. particulars (1975); bill of has three v. Car functions: 46 L.Ed.2d 84 roll, (2d 1975), “to inform the defendant of the nature of cert. denied, him charge against pre- with sufficient propounded are questions used or the so X listed the 13 (1976). Count L.Ed.2d 378 conspiracy. unreasonable or devoid of the constitutional in furtherance of the overt acts “when, where, of that request purpose the as to constitute an abuse Appellant’s for States, in furtherance of the v. 431 every and how” of act discretion.” Haslam United denied, request 362, (9th Cir.), to a for 402 equivalent F.2d 364 cert. evi- discovery government’s L.Ed.2d 142 complete S.Ct. dence, the purpose which is not a of bill of (1970). of discretion for “It is not an abuse Armocida, v. su- particulars. conducting United States judge upon to insist the trial so, “A defendant pra, examination, 515 F.2d at 54. if he does but voir dire all the evidence the entitled to know ‘judicial’ discretion in must exercise a sound produce, but government intends acceptance rejection supplemental of the or theory government’s the of the case.” . . ..” questions' proposed by counsel States, supra, 314 F.2d Yeargain v. United States, v. United Silverthorne the indictment and the at 882. From 1968). receive, which he did government evidence enough charges appellant learned Juror Attitudes A. trial, to avoid prepare him to Appellant princi- not contest these does trial, plead jeopar- and to double surprise ples or the of the court to conduct decision dy prosecution. in the event of a new Rather, the voir dire examination. he con- unpopular political tends that as a man of V who himself on trial for con- views found requires Amendment Sixth destroy military recruiting cen- spiracy to prosecutions, all criminal the ac “[i]n ters, prospective he was to discover entitled speedy to a enjoy right cused shall jurors’ enforcement attitudes toward law trial, impartial jury . . public by an personnel, the use of personnel, military prospec- An examination or “voir dire” of firearms, argues War. He and the Vietnam jurors that the helps tive to ensure defend- perfunctory exploration the court’s of jury. by impartial ant is tried Rule topics, coupled these with its refusal to sub- 24(a) of the Federal Rules of Criminal Pro- probing ques- mit defense counsel’s more may the court decide provides cedure jurors, was reversible error. tions to will parties’ whether it counsel con- or If the court duct the examination.7 con- amount of time a trial court dire, permit it “shall ducts the voir jur inquiring prospective into spend must attorney attorney defendant or his and the with each case. ‍​​​‌‌‌​​​‌‌​​‌​​‌​​​​‌​‌​‌​‌‌​‌​​​‌​‌​​​​‌​​​​‌​‍Most ors’ attitudes varies supplement the ex- government for the mundane, require only crimes are inquiry as it by amination such further Crimes of cursory voir dire examination. proper deems or shall itself submit to the terrorism, especially if' com bombing and prospective jurors questions such additional governmental protest against as a mitted attorneys parties or their as it deems behavior, easily prejudices arouse the more 24(a). proper.” Fed.R.Crim.P. however, jurors, and necessi prospective of Although scope We have held that “the of the voir tate a more elaborate voir dire. in 1972 and procedures appellant’s dire examination to be activities occurred of the Vietnam used within the sound discre- near the termination are matters War, passions inflamed the judge, they might will not tion of trial be jurors, ren- procedures prospective appeal disturbed on unless of at least several supplement government 24(a) provides: the exami- for the 7. Fed.R.Crim.P. inquiry as it deems nation such further may permit “The court the defendant or his prospec- proper or shall itself submit attorney government attorney and the for the questions jurors tive such additional prospective to conduct the examination prop- attorneys parties their as it deems or jurors may itself conduct the examination. permit er.” In the latter event the court shall attorney attorney defendant or his and the previous questions directed at fairly detailed incapable performing them dering any dif- and to inform the court of jurors time of Even in at the at his trial. queries elicit- trial, responses which these many opposed ferent appellant’s Americans War, and a protest against ed. any form еquation number greater opposed still time observing amount of re- After political expression. Some

of violence for a full-scale examination each quired these atti- laypersons might have carried authority district court had the juror, the man ac- into of a tudes with them a trial inquiry. adopt compact a more mode military re- cused of to bomb conspiring States, supra, Haslam See Therefore, essen- it was cruiting centers. Amaral, In v. at 364. United States F.2d judge present case to tial for the trial the 1148, 1973), ap- (9th we F.2d 1150 Cir. 488 jurors’ prospective attitudes to- examine the court asked proved a voir dire in which represent- and the views he appellant ward question prospective juror a about the first ed. prejudice and thereafter “reminded racial jurors questions all prospective thoroughly first questioned The court juror one were asked of all and asked of juror, and prospective elicited information process that the voir dire was cumulative about his views toward law enforcement probe juror’s designed to into the state one forces, personnel, the armed of fire- the use of mind to discover whether each could arms, protests, expo- Vietnam War and his solely guilt determine or based innocence pretrial inquiry was publicity. sure to This presented ques- the evidence at trial.” The comprehensive, it detailed and focused propounded by court tions the district appellant on the areas about which desired v. succeeded in ferret- United States Giese juror’s an- hearing information. After this jurors incapable who of serv- ing out swers, appellant, government, and the ing impartially. response In to the court’s certainty with some whether or court knew question incorporated the general more the trial. qualified not he was to serve at specific questions jurors, of other sev- asked other The court’s examination of several jurors expressed prospective strong eral jurors beyond reproach.8 also For was personnel feelings about law enforcement however, jurors, some conducted a the court jurors These and the Vietnam War.10 did inquiry, asking merely more limited if a panel appel- tried not serve on which juror any responses questions lant. jur- asked prospective the court had other ors.9 dire, At the close of initial voir permitted suggest counsel to court defense symmetry, In the interest a uni questions jurors. additional to ask the Al- juror might form examination of each though requested the court refused to ask been desirable. Our function is not to as questions about Ford’s condition- President certain whether the met technical voir dire amnesty plan pardon al of former perfection, standards of however. We will Nixon, President honor most of the did inadequate not find an examination unless requests. procedure gave other This de- court district abused its discretion opportunity participate counsel an fense failing questions capable revealing to ask jurors in the voir dire and to ensure that prejudices jurors. In prospective questionablе qualifications were elimi- case, every present did not ask court nated. juror specific questions about his or her law mili Appellant argues attitudes toward enforcement and that the court firearms, tary personnel, refusing accept proposed the use and the all his erred in However, juror questions, Vietnam War. each was which he offered both before and minimum, asked, at a to consider the more A district court examination. 292-302, 350-52, E.g., E.g., R.T. at 8. R.T. at 308-12. 10. 367-68. 341-42, E.g., R.T. at 366.

1183 publicity depend pretrial on the level of accept or re has considerable discretion however, court. When and as the discretion of the district ject proposed questions, dire, its adequate great, judge conducts an voir the trial long “pretrial publicity as it questions rejection specific correspondingly great of a defendant’s care in must exercise Heck, 499 is not error. United v. relating aspects publicity all of the case 778, denied, (9th Cir.), cert. 419 F.2d 790 impair might tend to defeat 1088, 677, 42 L.Ed.2d 680 95 S.Ct. U.S. rights of an accused.” Silverthorne v. Unit- (1974); Hamling, v. United States States, supra, F.2d at 637-38. The ed 87, (9th 1973), aff’d. 418 U.S. simply jur- voir dire “must not call for the (1974). 41 L.Ed.2d 590 S.Ct. subjective ors’ assessment of their own im- many questions district court asked partiality, general and it must riot be so but, suggested by appellant, to conserve adequately probe possi- that it does confusion, justified time and avoid prejudice.” bility of United States v. Poliz- declining to ask the others. United States zi, supra, 500 F.2d at 879. The district Workman, F.2d 1128-29 careful, court should conduct individual Cir.), denied, cert. juror, pref- prospective examination of each (1972). adequacy 34 L.Ed.2d 102 Given erably presence out of the other which it of the voir dire examination did jurors. general A question directed to the conduct, say we cannot that the court erred group prospective jurors entire of is inade- proposed using every question by in not 879-80; quate. id. at See Silverthorne v. appellant: States, 638-40; supra, United 400 F.2d at “The can court closest to the situation Relating ABA to Fair Trial and Standards proper way evaluate the to walk the best Draft, 3.4(a) (Approved Free Press at 130 § vigorous difficult line between a voir dire 1968). any possible to determine bias and avoid by specific questions creating ance of bias however, publicity, In cases less of suggest which add ‘fuel to the flames’ in procedures required. these are not Several

ing presence issues.” of controversial questions general addressed entire Polizzi, 856, United States v. 880 panel jurors, ques of followed individual 1974), denied, cert. 419 U.S. tioning jurors respond affirmatively who of (1975). 95 42 L.Ed.2d 820 S.Ct. inquiries, may be to the initial sufficient if jurors few it becomes clear that Publicity B. Pretrial knowledge of the case. See States Appellant argues also the district 95, 103-104, Liddy, U.S.App.D.C. v. 166 509 safeguard right court failed to to an denied, (1974), F.2d 436-37 cert. impartial by prejudicial uninfluenced 42 L.Ed.2d 842 S.Ct. pretrial publicity. He contends mas- Polizzi, (1975); supra, v. United States indictment, publicity sive surrounded his Similarly, the court initial F.2d at 879-80. necessitating inquiry a detailed into the ex- may jurors specific questions ly ask several juror posure prospective of each to media pretrial publicity, exposure about their coverage. cursory probe The trial court’s and, apparent they know once concludes, subject, into this did not dis- case, may nothing little or about the direct pel possibility the substantial that he was general questions, incorporating all more jurors opinions tried who formed their questions previously asked to the re prior to trial. maining jurors. the district court Since assessing task in confronts a difficult Perhaps to the misfortune of ev necessary, type of voir dire which is eryone judicial process, involved in the no jurors queried can responses of the first precise prescribes type rule of voir dire indication, at least as reliable as protect serve as an necessary examination which is evaluations, against prejudicial publicity. subjective The of the amount pretrial other appropriate scope generated. the voir dire the case has publicity and detail of case, percent of these ing about the case, ap- present the court asked

In the opinion about the panelists had formed potential jurors, half the most proximately We found jurors ques- guilt or innocence. among the first defendant’s of whom tioned, peculiar and difficult facts exposure pretrial pub- “under the about their case,” juror little or no abused its dis- licity. every Almost had this the court had indictment, knowledge appellant’s conducting cursory voir dire prior cretion arrest, who pending pat- trial.11 Jurors The factual examination. Id. at 640. opinions formed about closely stated that more tern v. Giese of United States jury.12 trial Polizzi, not on the the case did serve v. resembles that of United States jurors gen- more remaining were asked Polizzi, had been In there supra, however. ability questions about their to serve trial, eral coverage the defendant’s but some however, Again, jurors who impartially. pub- judge’s questions pretrial the “trial about the case were ex- expressed opinions questions two ad- licity were limited to cused.13 panel of prospective the first dressed to jurors questions addressed to an and later court did not abuse its district juror.” Id. at 879-80 prospective individual in which it dis by the manner discretion omitted). Because the answers (footnotes question. posed pretrial publicity questions gave no indication of to these clearly in his judge a trial has erred “Unless voir dire possible prejudice, we found the to uncover estimation of the action needed finding adequate. comparable We make a prevent prejudice pretrial publici from present case. appellate ty, an court should intervene impose estimate.” United its Polizzi, supra, By 500 F.2d at 880. its own VI appel coverage observation of media Revolu- A. From the Movement Toward case, lant’s the district court was able to tion publicity surrounding determine the level of required the trial to screen out care judge committed Giese claims the trial jurors. position We are not in a biased permitting separate three errors headlines, accurately many assess more how entitled From the government to use a book editorials, photographs the media de as evidence Movement Toward Revolution activities, arrest, appellant’s voted First, argues it was against him.14 he significant trial. The absence of a number prosecution’s error to admit the book in the jurors by, or had of who were influenced showing the purpose case-in-chief for the seen, coverage appellant’s case in even and the other association between Giese re newspapers and on radio and television prejudicial effect conspirators because its prose of this inforced the court’s evaluation Second, outweighed probative value. he its highly intensive cution as one in which a never have says the book’s contents should probe juror unnecessary. each was they because been revealed to to the offense hearsay and irrelevant Only involving pretrial in a case extreme Third, argues he that it was im- publicity, charged. effects on the demonstrated prosecu- permit we that a trial for the court to prospective jurors, proper held allegedly inflamma- inadequate. In tor to ask to read court’s voir dire was Sil- Giese States, supra, in front of the tory passages v. from the book verthorne United jury. hear- contends that in addition at all 65 veniremen admitted 11. half of all veniremen asked 12. R.T. at 346-48. Approximately knowledge of the about their specifically prior none. Almost all the E.g., case stated that 375-76. 351-52, 367-68, 13. R.T. at jurors knew about the case had who vaguest understanding of the crimes committed erred in contends the court 14. Giese also allegedly at stake. R.T. and the issues political permitting to mischaracterize prosecutors 354, 358, 362, at 379. 306-08, 310, 324, 333, closing during prejudicial the book in a way argument. 30 infra. See Part VIII and nn. 29 & evidence, violating by introducing the rules of admission of books as evidence of his From the Movement Toward Revolution in- peaceable during his character own testimo- liberties, fringed his First Amendment in- ny on direct examination.15 cluding expression and the right freedom of clearly distinguish we At the outset must to receive information. physical object between the book as reject arguments, We fingerprints bore certain and the book as a doing emphasize but in so we wish to that work of literature which partic- contained a establishing general we are not rule that message. ular During government’s government may person’s use a reading single case-in-chief not a word was said habits, tastes, literary political or views as prosecutors by any government wit- prosecu evidence him in a criminal regarding ness the book’s contents. From many tion. In cases such evidence would be the Movement Toward Revolution was used See, clearly g., e. inadmissible. solely for permissible pur- the limited and McCrea, 583 F.2d 1083 pose proving Co-conspirator association. 1978). upholding Our decision the admissi- McSherry testified that the book—Govern- bility of From the Movement Toward Revo- ment belonged co-conspir- Exhibit C-49— lution stems from the peculiar circumstanc- Severin, ator R.T. at co-conspirator and, reflecting es of this case our concern Meyer possession said he had seen it in the for the sensitive nature of First Amend- conspirators of various apartments vаlues, ment very rests on narrow Portland and R.T. at 996. Seattle. grounds. We hold that it was proper to prosecution attorneys stipulat- and defense during introduce government’s the book Doyle ed that FBI agent Frank would testi- case-in-chief finger- because it bore the fy that he seized the book the search prints of Giese and three of co-conspira- Jose, of a apartment San California occu- tors and thus tended to corroborate witness- McKeel, pied by co-conspirators Severin, conspirators es’ that the associat- Following stipulation, and Wallace. ed with each other. We further hold that it proper Exhibit to ask Giese to C—49 was received evidence read extracts from the book along on cross-examination with 26 other items which because had been opened to that line inquiry door seized Jose. R.T. at 1290-91.16 Ex- San holding [prosecutor]: In view Special Agent of our that From the Move- MR. TURNER Doyle, pursuant ment Toward Revolution was admissible to the search warrant searched prove association, Apartment to rebut Giese’s character Number 10 San Jose and he evidence, impeach credibility following and to found Giese’s as the exhibits which he can iden- witness, tify express any opinion we need not which bear either his initials some other regarding government’s identifying argument the that marks and are —these are all C-21, 23, 22, 24, 25, 26, 27, 29, 42, 43, 44, 45, conspira- book was also admissible show 47, 46, 48, 49, 50, 51, 52, 54, 53, 55, 56, 57, 58, motive, purpose, tors’ and intent. sorry, 59. 60— ” THE It will be COURT: received. . . . following colloquy place 16. The took at R.T. judge When the trial said “It will be re- 1290-91: ceived,” 1291, apparently R.T. at meant “It” stipulation “THE COURT: You have a group to include the of exhibits as well as the some sort? stipulated testimony. reporter’s The exhibit Yes, attorney]: MR. PAULSON [Giese’s sir. list states that From the Movement Toward Basically, agreed MR. PAULSON: we have if Revolution was received in evidence at R.T. agent say were called he would he searched reporter slight 1292. The made a mistake: and found certain exhibits and identified them. say list should Exhibit was C—49 admitted at He will read off the list of exhibits. trial, Throughout R.T. 1291. the rest of the you waiving THE COURT: And that are not From the Movement Toward Revolution was your objections? earlier consistently being referred to both sides as MR. PAULSON: That is correct. See, 1673-74, g., “in evidence.” e. R.T. at stipulating part THE COURT: But as to this 1765, 2077, 2078, 2133. of it? attorney’s Giese’s statement that he was not Yes, MR. PAULSON: sir. waiving objections,” 1291, his “earlier R.T. at pretrial sup- was a reference to a motion press apart- THE Which COURT: are the exhibits? all items taken from the San Jose “substantially out- ue it did have was conspir- was linked to individual hibit C-49 prejudice, Richard fingerprint expert danger FBI of unfair weighed by ators when found on fingerprints issues, Ranels testified misleading that or of confusion of exemplars on fur- the book matched those 44-45. No Appellant’s Brief at jury.” Wallace, Severin, Giese, nished objection any point made at dur- such McKeel. R.T. at 1510-14.17 government’s case-in-chief. Nor did ing the limiting attorney request a or cau- Giese’s argues appeal On Giese when the book was re- tionary instruction value as “virtually probative no book had association, Consequently, we what little val- ceived in evidence.18 evidence” process- 116-26, A. Under controlled at at 406. The [RANELS]: ment. See R.T. C.T. standing type developed prints ing chal- this lacked have court held Giese we lenge legality up using of the San Jose search were to six and this method that seizure, 190, the motion to years R.T. at and denied seven old.” suppress (Wallace) who did as to the defendant R.T. at 1512. standing. R.T. at 499-501. The court’s clearly finger- The record shows ruling assigned appeal, was not as error on prints Toward Revolu- on From the Movement express opinion concerning therefore we no it. 1971, tion, copyrighted in were at which was years when most three and one-half old fingerprints 17. Three of were found on page 1974. Ranels testified at Giese’s trial October 146 of From the Movement Toward Revo- course, lution; 166; that, younger page prints than three were on one was on The were 167; page page 168. laborato- and two were on at the time Ranels and the other F.B.I. ry processed greater dissenting opinion them. rele- technicians Of two some- contains proof confusing fingerprint that the fin- vance is the uncontradicted what expert references to F.B.I. testimony concerning possi- placed gerprints on Ranels’ the book e., age fingerprints two-year period, on Exhibit ble found i. between mid-March 1971 says point page At one the dissent Ranels C-49. Ranels was and mid-March 1973. prints 166) (page part testified that “the recovered on ‘Revolu- contains of an asked about years up old.” tion’ could have been to seven “Open article entitled Letter to the Weather having quotes 164, Elsewhere the dissent Ranels Underground.” begins page The article on prints “said that latent had been recovered that at the bottom of which is this footnote: “Re- years Judge Hufstedler’s were seven old.” permission Village printed The East from Opinion 1207. at These comments con- Other, February 23, No. 1971.” The Vol. that, vey impression the erroneous from the last item in the book is dated March standpoint place of events which took between impossible for the Thus it would have been early fingerprint late 1971 and evi- pri- conspirators to have handled Exhibit C-49 dence was so stale and so remote as to be And the book was or to mid-March 1971. since utterly any probative devoid of value. The conspirators’ apartment from the San seized dissenting opinion misleading it because fails 1265-66, 22, 1973, it R.T. at Jose on March note when Ranels said he had found equally impossible for would have been fingerprints “up that were six and seven put fingerprints on the others to have their old,” years referring specifically he was not sig- mid-March 1973. These dates are after Rather, prints on he was Exhibit C-49. Wallace, Giese, nificant because the fact simply recounting general experience: Severin, passed and McKeel From the Move- past some time he and his associates among Revolution themselves ment Toward examined that bore six or seven documents mid-March 1971 and mid- sometime between year-old colloquy fingerprints. be- Here is the prosecution March tended to corroborate lawyer which the tween Ranels and Giese’s conspirators as- witnesses’ the dissent’s comments are based: with each other between late 1971 and sociated us, sir, you “MR. tell how PAULSON: Can early 1973. you long fingerprint you said found objection Except for the Fourth Amendment you page present 166 before made had been supra, in note 16 Giese’s counsel discussed your examination? objection during govern- made one No, sir, A. I cannot. [RANELS]: remotely which was even ment’s case-in-chief any limits? MR. PAULSON: Are there with From the Movement Toward years connected Could it have been there ten or what? objection challenge did not having Revolution. A. I can never recall [RANELS]: probative value as circumstantial developed anything my knowledge the book’s association, merely alleged that years particular type of but evidence was ten with of old this inadequate government However, founda- quite had laid an chemical. it could have been repro- attorney claimed a chart tion. Giese’s old. ducing fingerprints you Exhibit C-49 found on MR. What do mean PAULSON: may prints quite have inadmissible because the old? was H87 fingerprints. they Even if anyone or else’s of review apply plain must a error standard had, that the book appellate argument still would been imma- to Giese’s the books association. proof McCrea, bar, of was inadmissible unlike the case at terial: since conspiracy prosecution, not a whether was the court below did We hold or not associate with the defendant did did permitting prosecution in plainly err persons completely was irrelevant. other Toward Rev- introduce From the Movement showing olution for the of associa- purpose In contrast to the books at issue in Nothing except tion. the book its about McCrea, Toward Revo From the Movement jury during the title was revealed to the great probative a of value. lution had deal prosecution’s It is true that case-in-chief. physical evi pieces As one of the three of can sometimes have a book titles alone 19corroborating Meyer’s and McSher dence defendant, tendency prejudice United ry’s testimony that Giese associated with McCrea, 1086, supra, 583 v. F.2d States the other defendants and the unindicted probative but in this case the exhibit’s value thereby affording him an co-conspirators, clearly outweighed slightly preju- the title’s agreement into an opportunity to enter readily distinguish- dicial effect. McCrea is them, played impor with C-49 Exhibit appeal able from the instant because course, tant role at trial. Of casual associa prose- books which were introduced tion, more, proof participa is not without totally lacking were cution McCrea conspiracy, say not to tion “but that is value, probative either as works of litera- irrelevant to the issue. particular containing type [is] ‘[P]roof ture infor- * * * acquaintance, objects association physical linking mation or as persons enough while not alone to establish the who read them. McCrea involved prosecution single of a defendant who conspiracy, yet bearing has sufficient there ” chargеd possession unregister- was with on to make it admissible.’ Williamson v. ed firearms and destructive devices. States, 192, (9th 310 F.2d 199 Cir. Knowing possession government was all the 1962) States, quoting Kanner v. United 34 prove; had to the defendant’s intent was 863, 1929). (7th F.2d 866 See also Unit Cir. Freed, immaterial. United States v. See 385, Armone, ed 363 F.2d 403-04 601, 607, 1112, 401 91 28 L.Ed.2d S.Ct. denied, 957, (2d Cir.), 87 cert. 385 U.S. S.Ct. (1971). logically pos- 356 infer One cannot 398, (1966) (“Since agree 303 L.Ed.2d (as explosives op- session of firearms and conspiracy, ment is an element of evidence them) posed knowledge of how to use relevant.”) of association guns, about possession from mere of books even if evi- contends that bombs, subjects. and related Thus the probative does have dence of association nothing to the books’ contents contributed circumstances, value it had no opinion under some finding process. truth The McCrea never in as to whether value here because association was give any does not indication question dispute: acquaintance the books in bore the defendant’s “Dr. Giese’s Crockett, 64, put beginning (1977); been on the book before the United States v. 514 F.2d (5th 1975). indictment. as set forth v. Baum Cir. Cf. United States objection properly Cir.), garten, (8th if overruled. Even 517 F.2d cert. fingerprints placed denied, on the book before 423 U.S. 46 L.Ed.2d conspiracy jelled in December of (1975) (Evidence concerning history and conspirators’ prior association with each other philosophy of Students for a Democratic Socie to that time was relevant to the issue of wheth ty and overall radical movement held relevant agreement. er later formed an Williamson and admissible to show the association of de States, v. United prior fendants with one to the date another 1962). relationships Evidence of behavior indictment.) fixed in the antedating period the indict covered bearing generally ment is on the admissible as belonging lists 19. The other two were address signifi existence of the and on the co-conspirators which contained Giese’s cance of later United States v. behavior. Par 1178, telephone at and number. R.T. name tin, denied, (5th Cir.), cert. 1292, 1316, 2045, 2049-50. 54 L.Ed.2d produced a stack questions, Giese counsel’s conced- conspirators was alleged each them proceeded and to describe ed; testimony established of 18 books direct his own with each of All 18 were relationship R.T. at 1676-82.20 by that he had a one one. In ef- Appellant at 45. Brief for in the trial them.” evidence later into introduced fect, propriety the argues that Giese jury’s inspection. for the and were available association, which proof of government’s “rep- the items were 1918. of R.T. at Some the Giese took long before presented types samples” of the of books resentative hindsight stand, judged with be should 1676; bookstore, R.T. at in his Giese stocked testimony on direct exami- by his provided others, books Giese had including three obviously with- proposition This nation. had written, personal property and were his evidence is prosecution’s merit. The out at the rather than kept at his home been inadmissible be- retroactively rendered not of 1734. None R.T. at bookstore.21 the de- eventually turns out cause it by govern- seized the books had been point. to contest chooses not fendant ment; during the had been mentioned none prove agreement, had government case-in-chief; none had prosecution’s association, prima of its part as and thus charged offenses in with the connection was not The fact of association facie case. Likewise, irrel- the books were indictment. trial, it heard so until stipulated to before far as of association: so evant to the issue no government had testimony, Giese’s shows, conspirators had the other the record knowing he would admit way of whether books, let alone the 18 never even seen con- with the other deny his fraternization with Giese. shared them be did not cease to spirators. Association government an issue until after examination Giese’s direct rested; therefore it would be unfair well pages almost six filled about the 18 books say prosecution lacked as inaccurate R.T. at 1676-82. transcript. reporter’s submitting on justification for evidence the state- prefaced He his remarks question in its case-in-chief. “necessarily read all he had not ment that books,” at but he left no R.T. of these government’s use of Although many them. For read doubt that he had in case-in-chief was limited Exhibit C—49 its instance, a rather detailed exe- he offered association, prosecution proving of Na- Engels’ Dialectics gesis of Frederick right to cross-examine Giese gained ture; background; the Movement Toward Revolution’s he Camus’s From discussed examination, when, on theses of Pierre Jalle’s explained contents direct he a number of testified about the contents of and Andre Pillage the Third World suggested they Labor, were indicative books A Pro- Strategy for Radical Gorz’s character. peaceable his gave descriptions of posal. He brief Eldridge by Ice Cleav- contents of Soul On in own behalf Giese took the stand his er, English Away All Pests: An Sur- With alleged confeder- supplying and denied China, 1954-1969 Josh- People’s geon Toward Rev- ates with From the Movement Underdevelopment Horn, Capitalism ua and fire- explosives olution and the various Frank, by Andre Gunder in Latin America arms manuals which had been found Jackson, George Black Brother Soledad 1673-76. Had he possession. their R.T. at Neihardt, Viet Nam by John G. Speaks Elk testimony about books at that stopped his Greene, Text Felix Photographs point, opened any doors. would not (a report the Club for response to his Limits to Growth stop. But he did not In Giese, open the door and invite the the 18 books did 20. introduction of prosecution books for ground the contents of provides to use another his own case-in-chief impeachment purposes. distinguishing United States his case from McCrea, supra. In the defendant McCrea suggest couple prefaced did not offer books into evidence about a his comments 21. Giese peaceable by saying: char- two we were indicative of his “The next works of his own McCrea, unlike acter. Hence the defendant R.T. at the bookstore.” never sold Rome), By juxtaposing store. R.T. at 1666-73. and American Radicals: Prob- Some lems and Personalities. Giese also men- participation peaceful account of his in Powerful, tioned Is An Antholo- Sisterhood explanation demonstrations with an of his Writings the Women’s Libera- gy of from founding reasons for the bookstore and a by Morgan, Readings tion Movement Robin sold, description types of books he by K. T. Imperialism in Fann and U.S. owned, read, portrayed Giese himself as Monopoly Capital, Hodges, Donald C. humane, scholarly, political peace-loving Essay An on the American Economic and possessed decidedly activist who non-vio- A. Baran by Social Order Paul and Paul M. jurors lent character. He told the to look Sweezy. The three works writ- Giese had past, at his track record. In the whenever Desire, ten were Artus Priest and Pam- bring change he had wanted to about a phleteer Century, Sixteenth French government policy, picketed he had or tried Lyric Poetry, and an article on Camus and persuade by disseminating to others ideas— Algeria published which was in the Colora- the kinds of ideas contained in the 18 books. Quarterly. do that, suggested given He personal this his- implied exempli- Giese that the 18 books tory, it would have been inconceivable for sold, owned, fied the kind of literature he or him to have turned to violence in order to read, literature, turn, and that re- political make a statement.22 left-wing non-revolutionary flected his but States, Michelson v. United 335 U.S. political views. His about the 18 (1948), 69 S.Ct. 93 L.Ed. 168 remains books, unlike denying his statements the leading case on the use of character had sold the books introduced Court, evidence a defendant. There the prosecution, just than an attempt was more Jackson, speaking through Mr. Justice said: explain away government to exhibits. The “Courts' that follow the common-law pieces books were in the overall mosaic of unanimously tradition almost have come character presented evidence Giese prosecution to disallow resort prefaced on direct He examination. his tes- any kind of evidence of a defendant’s evil timony about with a books detailed account probability character establish a of his political of his involvement in various caus- guilt. Not that invests the law the de- es, placing special emphasis on his participa- good presumption fendant with a char- peaceful rights tion in civil and anti-war acter, States, Greer v. movements. He described how he had L.Ed. but it grown increasingly during concerned matter simply closes the whole of charac- 1960s about social conditions and the di- ter, disposition reputation on the rection foreign policy which American prosecution’s case-in-chief. The state taken. At first he had manifested this con- may prior not show defendant’s trouble by taking part cern in marches and sit-ins. law, acts, specific with the Then criminal or ill around 1969 he received a sizeable among neighbors, though inheritance name his even way and decided that the best propagate political might logically persuasive views such facts was to es- be Project tablish the Radical Education by propensity probable perpe- book- that he is closing attorney argument, suggest In his nonviolent demonstrations. And I emphasized supposedly pacific you say that his client’s that to that a man who had worked principal character was his peace, say defense: for that Frank Giese is out throwing bombing recruiting Giese, by bombs and cen- participating “Frank in these ters, will, illogical, you saying ’60s, peaceful is as if demonstrations was King following spiritual leadership, you Reverend Martin Luther was a member if will, Party. King Martin Luther the Black Panther who believed way achieving goals opposite. just nonviolence as the fact Dr. “The is who, again, peaceful change, had been a student of Mahat- deducated [sic] Ghandi, ma change. another believer in nonviolence. not violent whole life reflected His spiritual heritage, “Frank Giese’s insofar as that.” working change society goes, our at 2083-84. R.T. demonstrations, along peaceful the line of 1190 fact on direct any specific to testifies as not inquiry crime. The is

trator irrelevant; judge has broad discre- testimony, the trial is because character rejected tending to evidence weigh too admit extrinsic contrary, it is said to tion to on the statement, if even overper- specific to so jury with the contradict much matter prejudge one with a bad concerns a collateral them as to such statement suade Benedetto, oppor- a fair deny record and him general in the case.” United 1978). particular 1246, (2d Profes- tunity to defend 1250 overriding policy of exclud- that where charge. The states sor McCormick’s treatise evidence, despite its admitted ing such invites the to implicitly the defendant value, experi- practical is the probative character from his something infer about pre- tends to ence that its disallowance and con- background description ‍​​​‌‌‌​​​‌‌​​‌​​‌​​​​‌​‌​‌​‌‌​‌​​​‌​‌​​​​‌​​​​‌​‍his of his issues, surprise unfair confusion of vent duct, to cross-examina- opens the door prejudice. and undue matters: reasonably related tion on all inquiry firmly denied “But this line of speak of an ac- “Ordinarily, when courts opened the defendant to State issue, it is his character putting cused’s resolving is relevant in because character by means which he does that the assumed may He introduce probabilities guilt. of testify to introducing witnesses who so is testimony general affirmative reputation, terms of good character in his of character is so favorable estimate his or, currently, opinion. Note should more jury may infer that he would however, taken, by relating a be charged. likely to commit the offense be good char- history supportive of personal

acter, may opening be a defendant along the same evidence door to rebuttal at- price pay “The a defendant must for line.” prove good his name is to tempting subject which the open throw the entire Evi- of the Law of Handbook McCormick’s for his benefit and to kept law has closed 191, Cleary (2d Supp. ed. et al. dence at 59 § where the law make himself vulnerable 1978).24 him.” otherwise shields may testimony alone Because character 475-76, 479, 69 at S.Ct. 218-220. doubt, enough a reasonable de- be to raise afforded open subject traditionally have been

Giese threw of his fendants they testify latitude when reading habits when he considerable literary tastes and personal histories. Sometimes specific selling, acts of about their testified about the cog- blunders. We are they commit tactical reading, owning the 18 books. Unlike inherent in the use witnesses, their the limitations who must restrict nizant of character character, we proof of literature as of testimony appraisals direct of the de employed by strategy applaud do not reputation,23 fendant’s defendant-witness Nor do we bestow attorney. of conduct as Giese and his may specific cite instances concept of trial imprimatur character on the proof possesses that he a relevant our Nevertheless, question before And a books. peaceableness. trait such as “[o]nce we think books are defendant-witness) whether (especially a this court is not witness Bowe, See, g., F.2d 405(a) States v. 24. e. of the Federal Rules of Evi- Rule denied, trial, dence, (2d Cir.) 87 S.Ct. cert. 385 U.S. which went into effect after Giese’s (1966) (In prosecution permits proof for character be made testi- of L.Ed.2d Liberty, mony opinion, up where the form of an as well to blow Statue 404(a)(1) “placed reputation. his as to Rule cod- examination defendant on direct portray prohibiting pros- attempted ifies the law rule common in issue and character violence, introducing opposed in its case-in-chief ev- ecution from to all forms himself as question idence of a trait of the accused’s character “for proper on cross-examination purpose proving posses that he acted in con- concerning guns in his [found him ” occasion; formity particular them, therewith on a purpose of introduce sion] evi- but the accused offers such e., self-portrait.”) where himself contradicting rebutting, i. dence, prosecution may respond with evi- dence “to rebut the same.”

H91 evidence; (9th Cir.), denied, persuasive form of character cert. 389 U.S. (1967). government 19 L.Ed.2d 173 the issue is whether had a had, right respond once the defendant Justice would not have been served had volition, his own chosen method jurors been left with the one-sided proving peaceable, law-abiding he was a impressions 18 created Giese’s innocuous individual. opposite books. To show the side of the coin, were, as it it was fair govern- for the It is well-settled the admissi ment to cross-examine Giese on other books bility of character “depend[s] evidence on sold, owned, he had or read. From the numerous and subtle considerations diffi Movement Toward Revolution was such a cult appraise to detect or from a cold rec book. It is true that keep Giese did not ord, rarely only and therefore on clear From the Movement Toward Revolution in showing prejudicial abuse of discretion bookstore, stock at the but he did not sell Appeals rulings will Courts of disturb However, all of the 18 books there either. subject.” trial courts on this Michelson v. there is no doubt that Giese read and ownеd States, 480, supra, United 335 From the Movement 69 Toward Revolution. Moreover, In handling perhaps addition to judge reading S.Ct. at a trial has book, copy Severin’s of the possessed Giese considerable discretion in determining what copy, portions his own of which he had lines of cross-examination reasonably are read.25 fairly Given Giese’s extensive con- subject related to the matter of the witness’ book, tacts with the we hold that the court testimony. direct Higgin below did not abuse its permit- discretion in botham, 17, (9th 1976); 539 F.2d 24 Cir. ting prosecution inquire about From Palmer, United States v. 536 F.2d the Movement Toward Revolution on cross- 1976). 1282 judge’s ruling The on examination. scope proper cross-examination should not be appeal interfered with on correctly The court also overruled unless he has plainly abused his discretion. objections Giese’s the book’s contents States, Lewis v. United hearsay.26 were irrelevant and From the examination, copy 25. On direct Giese volunteered tion. R.T. at 1765. Giese’s was not intro- possessed copy that he his own of From the duced into evidence. Movement Toward Revolution. Until Giese objections prose- 26. The were raised when the lawyer brought up subject, nothing and his portions cutor asked to read Giese aloud of the belonging had been said about books to Giese’s below, reproduce entirety, book. We in its personal library. prosecution The had referred government’s cross-examination Giese book, copy to Severin’s of the Exhibit From the Movement Toward Revolution : C-49, fingerprints. which bore Giese’s See [by prosecutor Giese, Mr. I “Q Turner] pages R.T. at you marked, would like to show what has been supra. following 1185 1187 made the Giese entered into evidence as Government’s Exhibit concerning statements on direct examination his you book, recognize C-49. Do sir? ownership copy of a of From the Movement Well, [by recognize A I don’t Giese] Toward Revolution: copy necessarily. recognize I the— [by Paulson, attorney] Mr. “Q Did particular copy Not but the book Q you carry ever or sell in the bookstore From itself? the Movement Toward Revolution? recognize A Yes. I the book. [by A I Giese] believe not. Now, you you copy testified that have a Q you copy Did ever own of that book Q of that book? yourself? copy A I believe I still have a of the book. A I did. you identify Can the title for the Q Court you copy Do still own a of that book? Q jury? and the A I believe so. A From the Movement Toward Revolution. you purchase your copy Where did Q you And have read the Q book? that book? IA have read snatches of it. biggest A 1think it was J. K. Gill is the book you to, you Would line Q heard Mr. Ranels Portland, Oregon. seller in It’s commercial." your fingerprints that some nine of cross-examination, R.T. at 1674. On Giese ac- appeared pages particular on various of this knowledged portions that he had read of his copy book? of From the Movement Toward Revolu- attorney objected to the any other defense Toward Revolution was relevant Movement was no more reading as such. Giese act of purposes of contradict- for the dual rebuttal the book than is a to read from “forced” impeach- evidence and ing Giese’s character prior read a incon- is asked to witness who passages veracity as witness. ing If the wit- jury. sistent statement hearsay to read he was asked unwillingness to do an ness demonstrates prove were not introduced to because unwillingness was e., reading no such (i. matter asserted the truth —and simply prosecutor can read here —the shown way to is a desirable violent revolution himself. the document change.) political bring social and about judge The trial is accorded con prosecutor “forced” him claims the deciding how evi says act he discretion jury, siderable to read front just shows, presented, as he is him. record dence should be unfairly prejudiced determining discretion in however, given was not forced to do substantial that Giese In both the what should be received. protest He did not when evidence anything. instances, probative must balance value attorney asked him to read a he assistant U. S. degree prejudice on passage. lawyer Neither his nor on the one hand and particular Giese, objec- there is an MR. TURNER: Mr. A Yes. you give this or one like it Did ever book tion. Q people trial or member —either of the Wait a minute. THE COURT: McKeel, Cronin, Akers, objection? Mr. Wallace or Leslie May I have an MR. PAULSON: Severin, McSherry, Lynn Max Robert Bruce continuing may THE COURT: You have a Meyer? objection. proceed. Please A 1 don’t believe so. sorry it aloud? ‘We are A You want to read turn, Giese, Now, you would Mr. with me Q destroyed the townhouse forever to hear that beginning Roman numeral VIII at the to book, only your army struggle is the belief that [sic] book, of the is the introduction places unique posi- struggle. us in a real That preface? because, stated, struggle “armed tion as Che Okay. A fight only people free solution for who you sorry, I I would like to ask Q read — dearly-loved themselves” and we have lost mean 13. comrades.’ A I believe it’s —is it it’s XIII. No. you go Do want on? me you. Thank Q Yes, sir. Q A XIII. It’s every experienced probably revolu- A ‘Also lawyer]: Objection. MR. PAULSON [Giese’s has, tionary that risks must be but we realize hearsay my knowledge, has not It’s and to he die, taken, replace them some will others will charged having with been with read books but or us.’ of— acts this case para- you Will continue to the end Q THE COURT: Overruled. attention, graph. (By Turner) you Directing Mr. Mr. Giese, trying out of that 8? A I am to make sense Roman numeral number right. replace A Roman them You mean numeral 13? will sentence. All ‘Others you right. racism, ending people rapping A All Roman numeral 13. Can about or us like paragraph all involved colonialism, read for us that ‘We are pi- all of the other sexism early stages’ you see that? things gisms, exploitation all that but these —do paragraph beginning A A where? only by revolution and revolution can be ended yes. Right A there — analysis struggle, revolu- is in the final armed Maybe wrong page I is 8. A am on the —it violence, war, revolution is tion is revolution is Turner, will have the THE COURT: Mr. we long have different successful bloodshed. How you. It be a bailiff hand the book to could fought before national liberation fronts different text edition. support.’ large popular havе won so, Giese, I think Mr. we can move don’t Q Honor, you. Thank Your MR. TURNER: something on to else. discussion, subject previous I have no to our Giese, you Page Mr. would look at questions.” further side, paragraph right-hand I last on the lower passage read at 1765-1768. The R.T. got check mark there? have a little copy pages of Severin’s from 166 and 167 came A Yes. Revolution; Toward of From the Movement that, you see sir? DoQ fingerprints. pages See note both bore Giese’s Yes, A I do. supra. you particular paragraph read that Could Q for us and continue on? sorry A ‘We are to’— Robinson, himself, By reading the other. United 560 he wished. the extract (2d 1977) (en banc), F.2d cert. express Giese could and did unfamiliarity denied, 435 U.S. 55 with the ideas contained therein. After (1978), prefera L.Ed.2d 496 held that “the lines, reading paused a few he and said “I reviewing ble rule” in a district court’s deci trying am to make sense out of that sen- question prejudice sion on the of unfair “is supra. tence.” R.T. at 1768. note 26 See uphold the trial judge’s exercise of dis doing, suggested In so he that he had not arbitrarily cretion unless acts or irration adopted absorbed and revolutionary ar- ally.” granting The reason for such broad guments Allowing set forth in the book. judge discretion to the trial is that Giese to choose the tone in which the con- in a superior position “he is to evaluate tents of From the Movement Toward Revo- impact evidence, since he sees jury lution were communicated to the could witnesses, defendants, jurors, diminished, increased, counsel, and their mannerisms and reac- prejudicial impact. book’s tions. He is there- [Citation omitted.] reading Even if the act of did hurt able, personal fore on the basis of obser- extent, probative Giese’s cause to some vation, impressions to evaluate the made enabling value of to observe his witnesses, whereas we [appellate being impeached demeanor while he was judges] must deal the cold record.” outweighed prejudicial effect. The “re Id. at 514. quested performance” clearly was relevant Doremus, United States v. 414 F.2d 252 important to an in issue the case: Giese’s (6th 1969), Cir. sets forth a useful test for credibility. jurors It is axiomatic that are determining requiring whether a defendant entitled to how the witness see reacts when perform given act on the witness stand the cross-examiner catches him in a contra unjustly prejudices Impermissible him. exposes diction or one of his falsehoods. prejudice requested per- results when “the “The demeanor of the witness on the stand formance or unjustly demonstration would may always jury be considered degrade humiliate or the defendant” or credibility.” their estimation of his IIIA performance “such damaging would be 946, (Chad Wigmore On Evidence at 783 § image the defendant’s and irrelevant to the 1974) (emphasis in original). bourn rev. Evi issue on trial.” 414 F.2d at 254. Giese normally dence is taken means of viva injuries. suffered no such Whereas some voce of witnesses rather than acts —such as a forced reenactment of an depositions written because it is considered especially shocking might degrade crime — jury crucial judge for the “to obtain the beyond defendant repair, in this case Giese’s elusive and incommunicable evidence of a attorney easily mitigated could have what- deportment testifying.” witness’ while V damage ever resulted from the act of read- 1395, Wigmore (em On Evidence at 153 § ing by simply asking his client on re-direct phasis original). agreed whether he with what the book said. For apparent reasons which are not factors, light In of these we hold record, no such rehabilitative effort was arbitrarily that the court below did not act event, made. But in reading the act of irrationally or or otherwise abuse its discre probably significantly injure did not Giese’s by failing sponte tion to rule sua defense. In ways, having some Giese read having act of read from the book the passage actually prejudicial less unfairly prejudiced him. than having prosecutor or a witness do argu Giese’s First Amendment it. Giese was free to read in whatever tone ment, by way which he did not assert of a pleased. emphasize he He could some timely objection request for words and skim over others. Had he instructions read trial, excerpt, prosecutor might Having opened at is without merit. parts, subject stressed its up political literary more violent whereas of his interests, Giese was able to read it in a if monotone Giese was not entitled to be selec 1194 in Ameri- Meyer, dealt with “urban warfare describing the contents of his books

tive claims in United R.T. at 953-54. Giese any more than the defendant can cities.” Hearst, (9th overruling the ob- judge 563 F.2d 1331 erred in v. the trial denied, 1977), argues 435 98 cert. U.S. S.Ct. jections, and further (1978), 90 was entitled to political 56 L.Ed.2d participation testimony about his describing what she did be be selective in of cer- his recommendation discussions and her kidnapped the time she was tween infringed his tain books was irrelevant “ right ‘has no to set arrest. A defendant rights. First Amendment the facts which tend in all forth analyzed at hearsay question must be laying open himself to a favor without level, we have At the first two levels. upon those facts’.” cross-examination recommend- out-of-court statement Giese’s 148, 155, States, 356 Brown v. United U.S. book; we have the at the second ing 622, 626, (1958). 2 L.Ed.2d 589 See concerning out-of-court statements author’s Lustig, 555 F.2d also United States (as by Meyer). summarized urban warfare denied, Cir.), cert. 98 U.S. My Eye In comments about Blood (1977). Just as a 54 L.Ed.2d S.Ct. all; hearsay were admis- were not “defendant who takes the stand in his own 801(d)(2)(A). There sions. See Fed.R.Evid. Amend behalf cannot then claim [Fifth level, either. hearsay was no at the second privilege against cross-examination ment] Meyer’s summary of the author’s state- subject reasonably on matters related to the prove the ments was not introduced to examination,” matter of his direct McGau asserted, e., i. truth of the matter 183, 215, California, tha v. S.Ct. place in American taking urban warfare is 1454, 1471, (1971), 28 L.Ed.2d 711 one who cities, that Giese’s rec- but rather to show sells, the kind of books he raises the issue of topic of a book on ommendation reads, or owns should not be able to invoke (it whetted impact his listeners on one of to cross-ex First Amendment as bar politics and liter- Meyer’s interest in radical along amination the same lines. ature, which was one of the factors jоin group him at the book- caused to Co-conspirator Meyer’s testimony B. Mesarosh, store). See United States concerning participation Giese’s (3d 1955), rev’d on F.2d 454-55 political and recommen- discussions grounds, other 352 U.S. S.Ct. dation of books (witness’ (1956) testimony that L.Ed.2d 1 objection Meyer that Without testified History read of the Communist defendant prison session with in- during a discussion Party of the Union to class held Soviet prisoners mates offered to send “free Giese hearsay). also McCormick On Evidence See literature,” R.T. at Communist or Socialist 1972). (2d Cleary et al. 249 at 589-90 ed. § topics and he discoursed on such as judge’s ruling irrelevancy on the The trial revolution, radicalism, domestic black liber- objection was also correct. Evidence relat- Hitler, ation, and the war in Vietnam. R.T. about books and ing to Giese’s statements objection Meyer at 953. Without alluded to provided it politics was relevant because political at the discussions Radical Educa- relationship jury with about his information Project that tion bookstore testified many people subsequently who pamphlet with him “a Giese talked about fin- co-conspirators. his Like the became called ‘Manual on Warfare’ Urban Carol on From the Movement Toward gerprints 956, during a Maragala,” R.T. at visit to the Revolution, light on Meyer’s shed shortly furlough his from bookstore after each oth- conspirators’ association with prison in late November 1972. Over the that Giese exer- er. It also tended to show relevancy attorneys’ hearsay defense the other leadership a role vis-a-vis cised objections, permitted Meyer the court to conspirators. By conducting discussions testify during meeting prison that at the poli- topic of mutual interest —radical George Jackson’s Blood Giese “advocatfed]” which, recommending by furnishing or My Eye, according In a book to tics —and

H95 smoothly planned,” as gone “hadn’t Mey- subject, Giese attracted on that books ready but that he passport “he had his prisoners that (and perhaps his fellow Severin er it would be really because wasn’t concerned Wallace) group at bookstore go if he had to to offense and even conspiracy. his first formed the eventually it.” he could handle Out prison he felt that unfairly testimony was not Meyer’s told Rosen that presence, Giese of Brown’s fact, took government In prejudicial. from an abortive mission “this been [had] draw jury did not steps to ensure that conspirators beginning,” and relating from evidence improper inferences directions, his had “hadn’t followed beliefs. In his sum political to books and snowballed, control and he that he had lost attor mation, United States the assistant people that were specifically said that and his jurors reminded the ney really fouled prison for the robberies reading on trial for were not co-defendants way had done it the up plans and if literature or types certain possessing it, planned they wouldn’t been he political phil subscribing particular to a for caught.” R.T. at 1551-54. record con scrutiny of the osophy.27 Our admissions to Rosen Meyer’s Giese’s verbal government vinces us that the used clearly his role in the permissible purposes about testimony solely for admissible, 801(d)(2)(B),and a violent see Fed.R.Evid. that Giese had prove and not to He does punish not contend otherwise. does or to induce character however, the district court erred recommending argue, radical reading him accusations, which he admitting Brown’s we hold that Accordingly literature. hearsay. We dis multiple claims contained rights were not First Amendment agree. Neither Brown’s accusations nor violated. alleged were offered statements

Severin’s asserted, the matter prove the truth of Post-Conspiracy and Con- C. Statements is, participation in appellant’s actual duct Rather, they were used conspiracy. against Giese re- government’s case showing for a merely lay the foundation testimony of Leslie part upon lied in deny them. Ander of Giese’s failure See husband, Rosen, her legal assistant States, supra, 417 U.S. at son v. United Rosen, represented one of the Michael who 219-21, ancillary ar 2253. Giese’s conspirators. Ms. Rosen testified that on or out-of- gument that admission of Severin’s 7, 1973, subsequent to the September about right violated his of con court statements prior appellant’s indict- conspiracy but equally unpersuasive. Since frontation ment, she, Giese, Brown, an attor- and Ross the state government did not offer Severin, co-conspirator ney for unindicted truth, had no interest ments for their Giese met in stated that Brown’s office. She 220, Id. at 94 cross-examining in Severin. Brown had informed told Giese Severin 2253. S.Ct. that Giese was “the leader and him activities”; 801(d)(2)(B) of the Federal Rules of illegal Rule planner of all of the is provides that a statement not Brown that he knew Giese was a Evidence also stated against whom it is attempted hearsay party break-in at if the participant adoption his or be get- of “the offered “has manifested Keller’s house and the driver In United v. bombing. lief in its truth.” away car” used in the second 1068, Moore, (9th 1975), 1075 Cir. “just response in Giese nodded and smiled” 775, denied, Rosen, 423 46 According cert. U.S. to these accusations. stated: (1976), 637 we Keller incident L.Ed.2d Giese then stated that prosecutor jury: Vietnam War. The Govern- not about 27. The told the against people proceeded be- ment has not political repression; “This case is not about they may point at one in time cause is this is not a case where the Government against been the Vietnam War.” proceeding against people what because of R.T. at 2025. they they case is think or what read. This 1196 performance Brown’s at the trial revealed general concerning

“The rule admissions credibility, him as a man of limited how- by acquiescence is well estab- silence or protesta- ever. His statement about Giese’s accusatory lished. When an is statement grand with his tion of innocence conflicted presence made in the defendant’s and stated that jury testimony, in which he hearing, he understands and has an deny any time did Frank Giese no it, deny “[a]t opportunity to the statement and to him.” R.T. at things which I said deny his failure to are admissible Throughout testimony, his Brown him.” hesitated, poor memory to a confessed An admission silence should be intro- gavе ambiguous question, the events in only duced after the into evidence district answers. Even if we can believe his state- responsibilities: court has fulfilled certain respond ment that he told Giese not to proffered admitting “Before admis- accusations, strong his the evidence was silence, judge sion the trial must de- enough support a reasonable inference termine, preliminary question, as appellant guilt by admitted his nod- whether the statement was such that un- ding smiling response to Brown’s der the circumstances an innocent de- charges.28 atmosphere In a non-custodial normally fendant would be induced to indictment, people prior deny most would respond.” Id. at 1075. having participated in accusations of feder- offenses, being al even after told that The court should determine that sufficient not respond. did have to The district court jury facts have been introduced for the properly submitting acted this evidence reasonably to conclude that the defendant jury. to the heard, understood, and acceded to the state- ment. Id. at 1076. This should be that, argues assuming determination, preliminary threshold testimony regarding by acqui his admission however, primarily for the responsi- escence was hearsay, not inadmissible it still ble for deciding light “whether of all should have been excluded as a violation of facts, surrounding the defendant actu- right against his self-incrimination. His re ally heard, understood, acquiesced Ohio, upon Doyle liance U.S. the statement.” Id. at 1075. (1976); S.Ct. 49 L.Ed.2d Geise maintains the admission *of Hale, States v. S.Ct. Rosen’s statements to his silence in the (1975); 45 L.Ed.2d 99 and Fowle v. United satisfy face of not accusations did these States, 1969), 410 F.2d 48 is mis points standards. He to Brown’s statement however, placed, for those cases concerned prior to his accusations he did not want admissibility of a defendant’s silence at admissions or denials from Giese and to the time of arrest and after he had received Brown’s testimony appellant trial situation, warnings. Miranda In that a de guilt denied his after the accusations. may punished invoking not be fendant Giese contends that Brown’s silent; con- right expect to remain he is not Rosen’s, making tradicted it uncertain deny post-arrest ed to accusations made whether he ever acknowledged guilt and logic law enforcement officers. This does compelling the keep non-custodial, district court evi- apply preindict alleged Giese, Rosen, dence of the admission from the ment meeting among jury. every deny Brown. reason to Giese appel- 28. We note that even if Brown also stated that Brown’s version of the events was sin- cere, “impassively my jury lant listened to statements the district court or the could have appeared puzzled,” indicating appellant . and asked Brown read his as that purpose ‍​​​‌‌‌​​​‌‌​​‌​​‌​​​​‌​‌​‌​‌‌​‌​​​‌​‌​​​​‌​​​​‌​‍making acquiesced what his was in accusa- in the accusations. It was for given jury weight tions. R.T. at 1598. Given Brown’s limited to this to determine the to be credibility, segment testimony. the district court would have been of United States Brown’s justified placing Moore, supra, more reliance on Rosen’s 522 F.2d at 1075. Moreover, appellant’s account of behavior. knowledge, aр- acquiescence or to admit it or to accede guilt none to but “[M]ere not act, Brown and Rosen did charges. cooperation Brown’s or proval of without Giese; he an answer from attempt to coerce cooperate, enough to is not to agreement Neither pleased. free to act as he remained conspir- a a person party a to constitute fairness, nor fundamental process, due partic- There must be an intentional acy. right contained in the Consti- explicit more a view to ipation in the scheme with of the violated the admission tution is pur- furthering design the common and or under person, custody not in silence of a at 758. pose.” C.T. in the face of accusations indictment did, however, convey jury to the The court criminal behavior. appellant’s requested in- the substance YII accept is “A court not bound struction. language of a instruction requested with the Con- by Association A. Guilt proposed a proffered by give counsel nor to spirators gives if it in instruction the court requested give court to requested district States, Amsler v. substance.” jury: to the following instruction (9th 1967). F.2d Cir. was in the that a defendant “Evidence with, of, one or associated or company Co-Conspir- Acts and Declarations of C. persons alleged proved or more of ators conspiracy members of is not have been a prove that in and of itself sufficient respect member With to Giese’s of the such defendant a member conspiracy, the court instructed ship in alleged conspiracy.” at 754. C.T. alia: jury, inter argues He that the court committed revers- determining partic- “In or not a whether failing give ible error in this instruction. was a defendant member of the con- ular instruc We find that the court’s may spiracy, you consider the evidence of jurors sufficiently that tions warned actions, with his together his conduct and appel they could not convict on the basis and You own statements declarations. mere, innocent with the lant’s association weigh consider the acts and may also and conspirators. The court informed co-conspirators declarations other (1) “a never to be con that: defendant were made the course of conjecture,” suspicion victed on mere it, and furtherance of 2187; (2) the must government R.T. at question bearing on the of a defendant’s prove charged “a defendant with con that conspiracy.” R.T. at membership purpose spiracy was aware of the common had the intent advance conspiracy, knowing partici it a willful and was and mis objection this instruction is 2217; pant,” (3) R.T. at as to substan the trial court decides that placed. Once crimes, presence tive “mere at the scene evidence, e., other than independent proof i. a particular charged knowledge crime declarations, co-conspirators’ acts committed, being the crime is are not connecting a the de support finding would particular sufficient to establish a de jury’s conspiracy, “it is the fendant the crime unless fendant aided abetted to determine whether the evi function find, doubt, you a beyond reasonable dence, including the decla [co-conspirators’] participated, as I knowingly the defendant rations, convincing beyond is credible term, previously defined and was States, Carbo v. United reasonable doubt.” spectator.” at 2231. merely knowing R.T. 1963), cert. de Knowledge Conspiracy B. nied, 12 L.Ed.2d 377 U.S. Assuming the court made (1964). disputes court’s deci Giese also prima assessment of whether the initial sion not to use the exact words contained prop- against appellant, existed following requested instruction: facie case jury The court instructed the that four jury rely the that it could erly instructed to find exception required material elements were upon this well-established to the conspir- guilty participating in the hearsay evi- Giese against rule the admission of (1) conspiracy alleged the acy: the acts declarations dence and consider and existed; (2) actually X that Giese Count co-conspirators. of the “willfully knowingly mem- and became [a objec the related Giese offers intent to further conspiracy of the with ber] erred in not tion that the district court (3) objectives”; conspiracy its that “the finding prima a making explicit facie by formed at least two or more of these membership conspiracy. case of his persons purpose alleged, was for the name- the trial court required We have not committed, to be ly, to commit and cause explicit finding, make such an however. the against certain offenses United States v. Calaway, See United 524 F.2d 609 States persons by and other and institutions means (9th 1975), denied, Cir. cert. violence, of or acts of terrorism and de- (1976); 47 L.Ed.2d 733 S.Ct. struction, including explosives the use of Smith, 1975). 519 F.2d 516 damage destroy per- and certain real and jury, of the case to the Submission property, including property sonal de- co-conspira instructions that it can consider scribed in Counts and 6 of this indict- statements, tors’ an indication ment”; (4) during conspiracy and independent court has found evidence es conspiracy “one of the members of that tablishing prima facie case. We will not willfully knowingly and committed least find error unless evidence is insuffi one or more the overt acts described in Here, cient. good independent deal of indictment, in Count 10 of the furtherance appellant conspir evidence connected to the purpose achieving of and for the I, acy. supra. See section objectives alleged conspiracy.” R.T. at 2213-14. Constitutionally Speech, D. Protected Although these instructions did not ex- Assembly Association and jury’s plicitly prohibit the consideration of Giese contends that the inherent nature activities, did, by First Amendment case, aggravated by govern- very logic, negate their and terms the rele- ment’s politi- introduction of evidence of his protected vance to the verdict of Giese’s activities, cal beliefs made the conspir- association, speech, assembly. The jury is, “bifarious,” acy involving one un- could have convicted after Giese find- lawful constitutionally protect- actions and ing “willfully knowingly” that he circumstances, ed activities. Under thesе joined conspiracy formed “to commit and asserts, required give he the court was committed, cause to be certain offenses jury special cautioning instructions persons other United States and not to convict on the basis of First Amend- of or acts and institutions means ment activities. Because the record does violence, terrorism destruction.” Noth- jury not indicate that did not base its clearer, ing threatening could be or less safeguarded by verdict on conduct the Con- hearing First values. After Amendment stitution, concludes, his conviction must instructions, juror these no reasonable could be vacated. joined found solely expressing opposition to the Viet- agree We with Giese that it was purposeful nam War. A more direct and necessary jury to ensure that under required manifestation of intent was to find grounds upon stood the which it could re joined conspiracy “willfully that he However, turn a we conviction. find that knowingly.” sufficiently the court’s instructions warned appellant that it could not convict VIII conduct, on the legal peace basis of such as War, ful opposition protect to the Vietnam closing Giese contends that its ar- ed guments prosecution the First Amendment. jury, com-

1199 improper methods calculated refrain from The tri- of misconduct. blatant acts mitted wrongful conviction as it is produce to a prosecution transcript reveals the al bring legitimate means to every to use fact, improper statements on did, in make Berger v. just one.” about a occasions, although these errors several 78, 629, 633, 88, States, 55 S.Ct. 295 U.S. appel- as shocking or egregious not as (1935). 79 L.Ed. 1314 First, pros- the have us believe. lant would characterizations personal offered case, ecution present the the United States attor- In “sick,” Giese, “a wolf in calling him of statements, perhaps inadvertent- neys made dangerous very and “a sheep’s clothing,” malice, violated these ly and without individual,” 2175, 2180; it also at made R.T. principles. the appeared to ask statements which prosecuto every of Not instance government’s faith in the credibili- place to reversal, requires rial misconduct or error Second, prosecution suggested that ty. the objected to the neither however. Giese non-testifying codefendant Wallace’s con- nor asked cor for prosecution’s statements fession, had ruled which the court earlier instructions; challenges pros he rective Giese, “one against was of was inadmissible ap for the first time on ecution’s conduct significant pieces more of corrobora- well peal. “It is established (cid:127) McSherry and tion” of of objection request a absence an or Third, against R.T. at 2043. Meyer Giese. instruction, must plain there be corrective prosecution improperly commented on to a for reversal.” Unit error afford basis evidence, produce certain Giese’s failure to 167, Perez, (9th F.2d 173 ed States v. 491 exculpatory as an account such 106, denied, 858, Cir.), 419 95 cert. U.S. S.Ct. question from events unindicted co-con- (1974). plain is a 42 92 A error L.Ed.2d which, claimed, Severin, it spirator inno- affecting highly prejudicial error substan Fourth, presented. man have cent would 174; 52(b); rights. tial Id. at Fed.R.Crim.P. prosecution slightly used some over- ¶ at Federal Practice 8B Moore’s 52.02[2] describing From Move- blown rhetoric to We a criminal con 52-3 52-6. reverse ment Toward Revolution.29 plain basis error “in the viction on the only, very exceptional situation situations A trial function fairly criminal can necessary to in order appears wherein it be if effectively only it is aided justice pre prevent miscarriage of or to to attorney accepts who his dual United States integrity reputation of serve the responsibilities: v. United judicial process.” Marshall is Attorney “The United States (9th States, 925, 1969). 927 409 F.2d ordinary party representative not of an a defendant is against When evidence sovereignty of a whose controversy, but prosecutorial strong so absence is as obligation govern impartially changed misconduct would not govern compelling obligation its verdict, plain seldom will be jury’s error therefore, all; interest, in a and whose Greenbank, found. United States See prosecution is shall criminal not denied, Cir.), cert. 188-89 F.2d case, justice shall be done. win a but that 41 L.Ed.2d such, peculiar very As he is in States, 124 U.S. (1974); Corley v. United law, the servant of the definite sense 351, 352, (1966). App.D.C. guilt which is that shall twofold aim of prosecution’s that the He conclude escape may innocence suffer. We plain error. not amount vigor conduct did prosecute with earnestness —in- strong. section deed, But, See may he while he case should do so. evidence, I, large blows, liberty supra. A amount not at strike hard prosecution did by anything the duty foul It is as much his unaffected strike ones. “[throughout prosecutor the other said described From the Move- 29. One thing very that these book “an architectural are references to ment Toward Revolution as manual, warfare,” basically, people R.T. at R.T. at did.” of urban merely particular this issue I summa- On arguments, connected Giese during its final by Judge Trask points rize those made prosecution’s the conspiracy. to the Absent which have led me to this concurrence. remarks, jury still would have improper the decisions, guilty. him In other we found of the Book The Introduction expressions of personal have found that Into Evidence guilt on a defendant’s failure and comments question 1. The book in was introduced were not serious produce to evidence government’s case into evidence the enough require reversal. United to objection chief, or only in without (9th Cir.), Fong, F.2d 190 cert. v. 475 motion, but, indeed, part as of a limitations denied, 93 37 S.Ct. stipulation concerning the admission of this (1973); v. Zum L.Ed.2d 402 United States other items. and 26 1970). As pano, 436 F.2d 2. of the book were never The contents use of Wallace’s confes prosecution’s the during its government referred to the sion, this error did not affect substantial itself, book, was the men- case in chief nor rights. served as cor The confession except tioned in connection with roborative evidence Giese. Without fingerprints the of de- the book bore it, against him convinc the case remained alleged conspira- fendant and other Likewise, prose ing. although we wish the tors. in greater cutors had exercised restraint “plain the 3. Under these circumstances characterizing From the Movement Toward applicable the error” standard is so far as Revolution, nothing we find their re introduction of the book concerned. compels marks about book which revers al.30 plain part 4. error on the There was no judge allowing go the book to of the trial

AFFIRMED. book, coupled with into evidence since the evidence, was relevant on fingerprint SWEIGERT, Judge,* concurring: District conspiratorial association —even the issue of might be circumstantial though the book Judge I concur in Trask’s affirmance of and cumulative on that issue. appellant’s judgment conviction and after analysis record, painstaking his of the in- 5. The mere fact of the title of the book course, cluding, of his conclusions concern- not, up point, was this sufficient to re- ing (Government the use of the book Ex. quire judge judg- the trial to substitute his 49) during C the trial. for that of the concerning ment evidence sarcastically evidence, govern- characterized 30. Since the book was in Cronin’s counsel attorneys ment were entitled to comment on it Toward Revolution as a From the Movement However, to a certain “song extent. should at 2133. book.” R.T. Co-defendant stressing sharp confined their remarks lawyer jury Wallace’s told the the book contrast between the kinds of books Giese said govern- of the weakest links in the one read, actually thereby he read and the kinds he ment’s case. R.T. at 2145. The defense attor- reminding jurors From Movement neys repeatedly urged jurors peruse vari- Toward Revolution had been used to contradict book, 2078, 2079, 2145, parts R.T. at ous of the impeach Giese’s character evidence and to credibility his lawyers and the for Giese and Cronin Having as a all witness. considered pages went so far as to read extracts from even circumstances, we conclude of From the Movement Toward Revolution on prosecutors’ failure to so limit their remarks conspirator’s fingerprints which no were found. improper damaging was not so as to com- 2078-79, attorneys’ R.T. at 2133. The defense pel although reversal. We note that appellate argu- behavior at trial belies Giese’s attorney registered “continuing objec- had prosecutors’ references to From ment that admissibility tion” to the con- the book’s Toward Revolution in summa- the Movement tents, supra, see note 25 he did not voice an deprive him of a tion so inflamed the as to objection request or a curative instruction adjudication guilt or innocence. fair response government’s comments closing argument. We further note that * by designation. Sitting attorneys defense made extensive use of the book in their own summations. Co-defendant alerting especially specific absent any alerting absent government especially evidence — — judge was not re- objections. defendant. The trial objection from inject himself into quired point at this the Government the Book The Use of procedure. Defendant on Cross-Examination is such that an af- here record light must be considered 6. This interpreted be con- could not firmance important time the fact that this language inconsistent trary posture change occurred in McCrea, F.2d of United States Defendant, in his taking the stand trial: Further, just McCrea, as in 1978). Cir. deny behalf, merely supplying not own did amply supported by so here is the conviction but went on co-conspirators, the book to the prejudice no could re- other evidence that by coun- volunteer, questioning his to under refusal to unreasona- sult from this court’s (none sel, of 18 other books production the “plain the unrealistically stretch bly and trial), in the previously of them mentioned rule. error” of of kind books he the exemplification owned, the obviously for sold read —all stressing commitments to

purpose of his HUFSTEDLER, Judge, dissent- Circuit violent, polit- than social or peaceful, rather ing: ical action. conspiracy for must Dr. Giese’s conviction evi- 7. In effect this was legal by pat- it was obtained be reversed because history personal acts his specific dence of in of the contents ently evidence inadmissible re- supportive good his character with of the Toward the book “From Movement of in the spect the character traits involved Revolution”, prosecutor which the forced See, charged crime him. jury the after defense Giese to read to Benedetto, (2d objection to the of the admission counsel’s 1978); Handbook on also McCormick's prosecutor had overruled. The book been Evidence, p. (2d ed. the Law of § the to convince used the contents of book 1978). Supp. et al. Cleary, jury expressed ideas in the the the point government 8. at this became The that he on were Giese’s own and acted book defendant in or- entitled to cross-examine conspiracy up ideas to form a blow those good der to his claim of character refute recruiting was thus convict- centers. Giese by confronting traits him with other kinds conspiracy by association in ed of book books, (Ex. C^f9) including of the book of guarantees of the egregious violation which, admittedly, copy had First Amendment. it. read from

The holds that Giese cannot majority by Reading from the Book the De- (1) the because he complain about errors fendant his Cross-Examination during the preserve the point failed to case-in-chief, (2) he invited Government’s objected (for the Although 9. defendant testifying peaceable by errors time) the the first to use the contents of of cross-examination, character, the door objection, opening the thus book on however, grounds the of he merely impeaching by proving was on read him hearsay appear does relevancy. revolution, (3) It advocating invited book objection to the man- that the was directed introducing samples books the errors al- ner which the contents the book bookstore, open- thus he carried in his e., elicited, ready to be i. in evidence were he read this ing the door to evidence that prosecutor the whether it was to be read book, (4) error plain no oc- particular upon request. the witness admitting the book’s con- curred either in asking the to convict Giese tents оr wrong nothing is with There expressed witness, ideas for based letting fairly practice common himself, already in book. read from documents majori- planned by offenses flatly substantive

The record contradicts the with ty’s waiver error theories. The in accordance the ideas and invited defendants pamphlets. not use the contents in the books and presented Government did at- impeachment, book for and it never evidentiary and consti- To understand tempted to the admission defend case, problems presented in this tutional Even ground. book on that if Giese’s law- necessary more than to describe in usual yer adequately protected trial had not quote detail course of the trial and to record, plain requires because error reversal extensively sometimes from record. prove neither the use of book to During pretrial proceedings, Govern- substantive with elements offenses produced many ment different books and charged nor the use of the Giese was response a court pamphlets order to impeachment permissible book for un- produce physical “all inspection defense der the First Amendment. expects evidence Government offer majority’s opinion is irreconcilable Among time of the items trial.” this court’s decision United States v. produced of books were a number 1978) McCrea 583 F.2d 1083. the pamphlets during seized search of an Finally, argument prosecutor’s the McKeel, apartment occupied by Severin, jury prose- numerous of contained instances during and The 27 items seized Wallace. which, cutorial misconduct the cir- under that search were all as “C—” marked series case, independent- cumstances of this would One of was “From exhibits. the items The ly require reversal. (hereafter Movement Toward Revolution”

“Revolution”). The book was marked I Government’s Exhibit and a chart of C— fingerprints latent from recovered C-49 Government’s case Giese was marked C-49-A.1 entirely upon credibility rested almost the of the MeSherry Meyer. opening of and jury, In his statement the the and, unsavory Both men had as prosecutor explained records the the how Government correctly Government both anticipated, prove wit- He told the jury intended its case. seriously nesses were impeached large the quantity that a of evidence had been MeSherry, principal trial. in figure the of discovered the searches the various conspiracy, pleaded guilty had to the bomb- residences of the defendants. That evi- ing and robbery charges, bank and he “guns, dence included ammunition and agreed testify against exchange Giese in blasting caps . . recovered in . the sentencing for a Meyer recommendation. lived in or used Mr. residence Akers history Seattle, had a record and a long books, criminal of Washington. It includes mental instability. illness and emotional paraphernalia pamphlets literature and per- did not Government succeed which relate to the use and manufacture of suading jury that the Giese was involved in explosives explosive and and devices the use offenses, jury acquisition substantive and the ac- and of firearms.” He said that quitted charges. him those rely upon of In effort the Government intended to fin- credibility bolster of MeSherry and found on these gerprints some of books and Government, Meyer, the from the outset of upon He the contents of others. described trial, upon relied of books contents one the books “The of entitled Blaster’s pamphlets, and possession found in the of significant as one “more Handbook” alleged some co-conspirators, to con- pieces of evidence case. It in this is the vince it, the conspiracy bombing, and the of ABC’s the how-to-do how to Manual,” Revolution,” “Revolution,” following “Humanity, 1. In addition to “Road to Peace,” pamphlets Paper Trip,” books and were seized: “Ants and Freedom “The “The Garden,” “Special Cookbook,” Home and book,” Hand- Forces “Protect Anarchist’s and Yourself Manual,” Investigation.” and Manual,” “Firearms Self-Defense from “Army Technical Trends “Tactical attorney Although prosecuting em- devices, book was exam- explosive use FBI from expert contents of such books as “The by laboratory phasized ined C., with interspersed Handbook,” D. Washington, Anarchist’s Blaster’s and “The finger- were the that book pages Cookbook,” nothing was said about the con- Wallace, Cronin prints the defendants during the tents of “Revolution” Govern- and Akers.” Judge ment’s case-in-chief. As Trask cor- observes, rectly was used “Revolution” integral part An Government’s object,” purpose was the introduction of books of intro- “physical case-in-chief for the Although many of the pamphlets. on the book. The ducing fingerprints found title, con- books were identified was unable to show Government were tents of of them discussed. The some with the other books it had connection witness was McSher- Government’s lead-off had in evidence. offered identify a series of ry, who was asked to case-in-ehief, part As of its the Govern- gener- and to pamphlets books and describe Ranels, an ment called Mr. FBI identifica- subject nature their matter. ally the Washington, specialist from D.C. He tion “Special Forces Hand- McSherry identified he latent fin- testified that had recovered book,” “explosive said dealt of the books gerprints on several mines, explo- devices, kinds of and different pamphlets that the Government intro- sives how to detonate them.” After found fingerprints duced. Latent books, prose- identifying several other Handbook,” “The Blaster’s “Socialism to him and said: cutor handed “Revolution” Man,” Revolution,” and others. “Socialist replied: McSherry “What about C^9?” Many fingerprints were unidentified found Severin, and belonged “C-49 to Max it’s books, identify on these but he able Toward Rev- entitled ‘From The Movement Cronin, Akers, McKeel, fingerprints of Wal- olution,’ acquain- by and it written an was lace, of them. Giese’s and Severin on some Severin’s, tance Franklin.” He Bruce were discovered on “Revolu- fingerprints his of identification testi- concluded round tion.” Cookbook,” mony “The with Anarchist’s “part group’s which he said was prints many found on “Revolu- Of library.” tion,” identify able to Mr. Ranels was The pursued Government its book theme Wallace, Giese, McKeel, and fingerрrints Meyer’s testimony.

with presentation 166, 167, Severin, pages on and appearing was Meyer Meyer first met Giese when an Ranels, ascertaining Mr. 168. After from Oregon inmate of the State Correctional objection, by of an that examination in aid his services Institute. Giese volunteered prints could the recovered on “Revolution” conducting for and lectures discussion old, up years have been seven groups Meyer testified in institute. finger- receipt lawyer objected to the prisoners that volunteered to send Giese ground proper no print on the evidence said liberal and radical literature. He and the further foundation had been laid on group Giese at the conducted discussion ground that the evidence was irrelevant prison George and he “advocate[d] overruled any issue in ease. court book, My Eye,” Jackson’s Blood in objections. said, Meyer objection, over dealt with “ur- case-in-chief, As its the Govern- part of Meyer ban warfare American cities.” Meyer produced testimony ment from also requested that he that he later testified and radical books ad- recommended Support literature from the Prison received during his lectures vocating violence Group, organization sponsored Oregon Institute. Both Correctional Bookstore, by the R.E.P. owned Giese. to Giese’s Meyer testified McSherry copy showed prosecutor When the him alleged co-conspirators, with the association “Revolution,” Meyer identified the book as Institute, but also his one of he had seen in various those that A number of ex-con- alleged conspirators. Bookstore. occupied by houses R.E.P. America;” victs, derdevelopment including co-conspirators some of the in Latin Jack- case, Brother;” son, Neihardt, in this had worked as volunteers in the “Soledad “Black bookstore and some of them had also Greene, “Vietnam;” Speaks;” Engels, Elk paint company worked in a formed Nature;” Giese, Lyr- “Dialectics of “French support. ex-convicts for their ic Poetry;” Morgan, is Power- “Sisterhood ful;” Growth;” Rome, Club of “Limits to When Giese took the stand in his own together with anthologies a series of behalf, educational, person- he described his political topics. and economic al, political background. He told the participation about rights his civil Giese next described his meeting initial demonstrations and demonstrations with Meyer, with whom he had become the Vietnam war. In an effort to rebut acquainted Meyer when wrote to him ask- implications that his bookstore carried how- ing for some books. He related his invita- pamphlets to-do books and about manu- Stipe tion Father to undertake volunteer facturing explosives, bombs and lawyer Thereafter, work in the institute. gave “Doctor, asked him: we have in the exhibits a narrative participation account of his . a number of pamphlets books and groups prison discussion within the facility. introduced into evidence I and want to run expressly He denied that he had ever through a list of these you exhibits with preached revolution, bombing or the use of you you ask whether sold these items any meetings. violence in of those There- your from bookstore?” que- Giese was then after, ways he described the in which he ried about the series of the books and acquainted became alleged the other pamphlets that the Government had intro- co-conspirators, expressly and he denied duced into evidence. These included “The alleged conspiracies connection with the Underground Manual,” Bombing “Firearms the substantive offenses. Self-Defense,” “Department of Army cross-examination, prosecutor On Manual, Blasting Electronic Equipment,” questioned length Giese at about his book- Training Tips: “Technical Mine War- store and about his association with the fare,” “Revolution,” “Communist Guerilla persons alleged various who were the mem- U.S.A.,” Warfare in the Paper Trip,” “The conspiracy. bers of the prosecutor then Cookbook,” “The Anarchist’s “Protect commenced his examination of Giese about Investigation.” Yourself from In each in- book, “Revolution.” After identifying the stance Giese denied that the book was following exchanges occurred: carried or sold in During his bookstore. “Q. And you have read the book? this interrogation, line of he denied that the IA. have read snatches of it. bookstore carried or sold “Revolution.” Q. heard Mr. Ranels’ [Y]ou Thereafter lawyer asked him that some nine your fingerprints ap- whether brought he had representative “a peared pages particular on various of this sample types of the of books that [he did] book? carry in the bookstore.” In response, Giese A. Yes. identified 18 books. He said that he hadn’t Q. you give Did ever this book or one “necessarily read all of these books.” The like it to . people . . either of the 18 books following: Cleaver, included the Cronin, Akers, on trial or Mr. Wallace or Ice;” Horn, “Soul on “Away with All McKeel, Severin, Pests;” Leslie Max Robert English “An Surgeon Peoples’ McSherry, Lynn 1954-1969;” Meyer? Bruce Jallee, China “Pillage of The World;” Frank, Third “Capitalism and Un- A. I don’t believe so. portion you

2. The copy entire text of that of the Do still own a interro- of that book? Answer: gation you is you pur- as follows: Did ever I “Question: believe so. Where did Question: carry your or sell in the copy bookstore ‘From The Move- chase of that book? I Answer: ment Toward biggest Revolution?’ Answer: I believe think it J.was K. Gill is the book seller you Portland, copy not. Oregon. Did Question: ever own a It’s commercial.” yourself? that book I Answer: did. Question: exploitation pigisms, all of the other Now, Q. you would turn ... book, things only can be that but these of the and all the introduction revolution is by revolution and the Preface? ended struggle, revolu- analysis armed the final Okay. A. VIII. violence, war, revolu- revolution is tion is read you like ask Q. I would long have differ- is bloodshed. How tion XIII. . . . national liberation fronts ent successful large popu- they have won fought before Q. you. Thank ” support.’ lar XIII. A. It’s argument jury, prosecutor’s to the In the hearsay Objection. It’s Mr. Paulson: books, one upon which he took each knowledge, has not been my and to fin- alleged co-conspirators’ more having but with charged with read books found, been and asked gerprints had in this case of— acts infer that whose jury to defendants The Court: Overruled. had be- appeared the books fingerprints attention, Q. your Mr. Directing and had come members read Giese, you ... XIII. Can charges in the be- participated substantive are all in- paragraph for us that ‘We acting they were out the ideas cause you see early stages’ volved —do read in the they had books. that? began by references to prosecutor Handbook.” He said “The Blaster’s you particular Q. Could read that jury: for us and continue on? paragraph Cronin, Mr. we have the fa- “Regarding sorry ‘We are A. to’— you have Blaster’s Handbook that mous Giese, ob- Mr. Turner: Mr. there is an the how-to- so much about. This is heard jection. explosives you it in and if ladies do Wait a The Court: minute. gentlemen opportunity have an to look May objection? Mr. Paulson: I have an deliberating, that tells you while are this continuing You may Court: you want to you anything everything objection. proceed. Please know probably don’t want to know want me it aloud? A. You to read explosives. about sorry to hear the townhouse ‘We are book fingerprints “The that are on this army destroyed your belief forever McKeel’s, Chester . were Leslie only struggle. That struggle is the real Wallace, Akers, and Jim Jim Vincent because, unique places position us in way. McSherry, by Bob Not Cronin. stated, struggle “armed Che people. . Those four free people fight who solution page shows “. . . On dearly- we themselves” and have lost caps, blasting prints are the picture of loved comrades.’ Now, is that and Jim Cronin. Jim Akers want me you go Do on? circumstance, just a is that unusual Yes, Q. sir. fingerprints those two coincidence probably every experienced A. ‘Also page, would be on the same has, revolutionary but we realize caps, blasting page would deal with taken, die, others must be some will risks bombings. used in all of the which were replace will them or us.’ Q. you end of the Will continue to the

paragraph. page This deals with “How about steel, rail- ‍​​​‌‌‌​​​‌‌​​‌​​‌​​​​‌​‌​‌​‌‌​‌​​​‌​‌​​​​‌​​​​‌​‍of structural of the destruction trying I out

A. am make sense ties, buildings, bridges; coincidental- road All will right. that sentence. ‘Others those? . fingerprints are on people rapping ly or us replace them like racism, colonialism, Now, get fingerprint ending you sexism don’t about “ words, you “Ask ‘Do recall the old what reading that book. position you unless are it, country,” destroy there, you your can do for up your fingerprints get You don’t mentally, morally, psychologically and it, position. The leafing through destroy you it. And whatever physically you do that is to read it.” only way good.’ do do it argument was used in A similar line of just pages “Now those are two from this respect defendants in connection with other pages book but these are two which con- Handbook,” “Special Forces “The fingerprints tain the of Frank Giese. If Handbook,” and the “Firearm Anarchist’s you may want you opportunity, have an and Defense Manual.” book, through to leaf the rest of the jury’s directed the prosecutor The then because, indicated, you— this as I tells He attention to “Revolution.” told this is another how to do it for urban jury: (R.T. 2050-51.) warfare.” Giese, regards “In California as Mr. we U have From the Movement Toward Revo- up finger- we make Frank “Did Giese’s lution, fingerprints Mr. Giese has on this prints on the book From the Movement particular you He told that he had book. Toward Revolution? . . . You read himself, possibly, of these one books pages finger- those where Frank Giese’s home. He could not recall how or if at prints pages. those It were. You read fingerprints got particular all his on this sniper bombing, talks about attacks. You book which came out of the Debra Sue pages read that You read other book. Apartments in California. throughout Page there. Look at for manual, “This is an architectural basical- instance, preface. Through- look at the ly, Between of urban warfare. this book very out that book are references to the book, you makings and this have the thing people (R.T. 2172.) did.” that these you sort of warfare that urban would like to II participate in. action, basically conspiracy

“This is any objections waiver to the intro- No of just very briefly I would like to take duction contents “Revolution” can excerpts pages which from contain Mr. proceedings during be found from the ‘A fingerprints. Judge Giese’s revolutionist sees As Government’s case-in-chief. as a phenomenon, acknowledges, death national must be Trask the book and the fin- ready change purportedly to kill conditions. gerprint Revo- chart were offered violence, war, struggle, purpose proving lution is armed for the association by fingerprints. lawyer promptly duty revolutionary bloodshed and the objected grounds of relevance and lack is to make revolution. “ proper objections The foundation. targets try pick ‘Let’s all with more sustained, should have been and if the cor- object planning. care and is to de- n made, ruling problems rect our had been stroy economy bombing like sites with “Revolution” would have been over.3 most, economy which will affect rip weapons money, sniping off prove at- fingerprint evidence did Remember, revolution, prints appeared tacks. in a one persons that the whose wins or are very high. dies. The stakes been associated with each other. The evi- evidence, course, fingerprint fingerprint lay any 3. The erroneous admission of the did not evidence, alone, standing would have been foundation for the admission of the contents of fingerprints upon harmless error. There was abundant evidence the book which the McKeel, acquainted any purpose. that Giese was well with admission the found for The of Wallace, Severin, prejudicial only fingerprint and that he associated af- evidence became prosecutor fingerprint with them on a number of occasions. The the evidence ter the used fully justify Government that was aware there was no the the admission of the contents of to controverted issue of fact about associ- Giese’s book. ation with the these men. The introduction of escape prosecu- majority The cannot the proved persons the who dence that argument jury upon tor’s based the the had been associated with handled book The per- No that the contents of the book “Revolution.” the book. inference arises this prosecutor casu- used the contents of book in who handled the book were even sons proof way the the same in which he used the contents ally acquainted in absence of that describing the manufacture of ex- made at or about of books the fingerprints were namely, explosive was to the con- devices: to plosives time. The evidence same fingerprint The ex- it should attribute trary. Government’s convince the that defendants, pert testified that he could ascertain the ideas in the book to the who He prints said that them to form the upon when the were made. thereafter acted substantive prints engage had been recovered that and to the latent Thus, very prints purpose on “Revo- was that years seven old. the offenses. This the open- any prosecutor been made at time had in his lution” could have the announced published ing prosecutor the was in 1971. had been after book statement. The any which produce any was no from an infer- to evidence of kind There evidence unable persons that whose ence could arise the that linked Giese with these so-called do-it- appeared the book in the therefore prints yourself handled manuals. He concen- proof “Revolution,” of one another. The of book attention on company trated his any to issue in he read. association was not relevant Giese admitted that The argued the case. Government has never book impeachment purposes.

was admissible us, Rather, argument before consistent Ill its court, its the trial was argument prosecutor first made The time that prove to that “Revolution” was admissible any of reference to the contents “Revolu- adopted that Giese the ideas of the book was in of Giese. tion” his cross-examination ideas, and, joined conspir- acting on those reveal, quotations As the from the record acy recruiting to centers. bomb passages Giese to read prosecutor asked of book could not have lawyer The contents promptly from the book. Giese’s Giese, if impeach been even objected. objection his was com- used Before attempt. had made that plete, interrupted court with an Government The the district attempted person contents of the books that reads ruling. adverse When he to re- of objection, peaceable as evidence his grant- new the district court cannot be used objection non-peaceable No inference continuing ed of or character. him the use person’s any can be drawn about a Although the contents of kind of book. of objection objection the kinds books incomplete, to- character from experi- have no in human gether with to the fin- reads. We basis prior objection persons “good” ence to of char- gerprint adequate evidence was more than assume reading matter appeal. error for acter confine their preserve the claim оf books, persons read “good” or that who majority's view that the error in peaceful people, are peaceful books admission of the evidence vanished is based involving violence persons who read books Judge theory on Trask’s novel admissibil- people. are violent ity: Although pur- the Government did not port justify prong Judge Trask’s the admission the book second impeachment proof error in rationale is that grounds impeachment, his the admission was harmless read “Revolution” contradicted book book the kinds of books he read. because the were ad- about contents his were admissible to impeach character evidence The contents of book missible veracity by showing veracity impeach as a “the impeach and to witness. sharp the kinds of books is contradicted contrast between Judge Trask’s rationale actually read and the kinds he the record the First Giese said he and forbidden n.30.) Opinion, (Judge read.” Trask’s Amendment of the Constitution. 1208 captures exposes him in a about kind of contradiction

Giese never testified one of his falsehoods. ‘The demeanor of Giese’s sole reference to his books he read. may always the witness on the stand be reading passing was a to habits reference jury in their estimation of maga- considered foreign the fact that he read some credibility.’ Wigmore his IIIA Evidence newspapers, zines and the contents which 946, (Chadbourn Rev.1974) p. (empha- 783 Thus, § was not in evidence. there no original)." Opinion, (Judge sis in Trask’s evidence on score to contradict. this supra, 1193.) Wigmore Professor would pamph- Giese did introduce 18 books and have been astonished discover that lets that described representative he as any supported he a view that inferences samples literature he in of the carried his whatever could be drawn about a witness’ bookstore. testified that He “Revolution” veracity from which the manner in a wit- was never in his carried bookstore. The out ness read loud from a book. Not no Government introduced evidence to show Judge person’s say does Trask that a char- that, to his contrary testimony, the books impeached veracity acter and his can be representative that he were not introduced reads, he books but even manner samples of the books he carried in his book- in he reads them. store. It no offered evidence that the book “Revolution” was carried in his bookstore.4 IV If the contents “Revolution” had been Even if Giese protected had not his rec- evidence, properly admitted into Giese could objections by appropriate finger- ord to the successfully being claimed error itself, prints, the book and the contents of forced to read from the book. It would rest book, the use of as the book evidence of entirely within the district court’s discretion complicity or for whether compelled reading appro- book was impeachment plain was because error However, priate. the contents of the book infringed rights protected by use Dr. Giese’s were not purpose admissible for this the First Amendment. The author’s writ- compulsory case and reading from the ing reading of the book and Giese’s book made the error even more egregious. constitutionally protected. book are The prosecutor’s The transparent purpose in re- books, freedom write books and read quiring inflammatory pas- Giese to read the to advocate ideas and to listen ideas are sages of was to convey the book rights fundamental may constitutional words author were the neither abridged. speech be denied or Free prosecutor fully words of The Giese. ex- “ ‘matrix, condition, is the the indispensable ploited strategy argument nearly every other form freedom.’ jury. Connecticut, 319, 327, Palko v. 302 U.S. 58 Judge says Trask that “Even if act of 149, (Curtis S.Ct. L.Ed. 288.” Publishing reading did hurt Giese’s cause to some ex- 130, 145, (1967) Co. v. Butts U.S. tent, probative enabling value of 1975, 1986, 1094.) S.Ct. 18 L.Ed.2d “This jury to observe his demeanor while was ideas, right to receive re- information being impeached outweighed prejudicial worth, gardless of their social see Winters ‘requested effect. performance’ York, 510, New S.Ct. clearly to an important relevant issue (1948), 92 L.Ed. 840 is fundamental credibility. case: Giese’s It is axiomatic (Stanley v. society.” Georgia our free jurors (1969) 1243, 1247, are entitled to see how the 394 U.S. witness when 542.) reacts the cross-examiner 22 L.Ed.2d “sharp samples rep- There was no contrast” between the as book introduced from his store repre- range political writings. kinds of books that Giese introduced resent a similar books, “Revolution,” sample sentative of the books that were carried in the like were com- mercially published widely bookstore and “Revolution.” The “Revo- book disseminated to anthology, spec- throughout lution” is an which includes a bookstores and libraries the United writings ranging trum of from to far liberal left States. to radical. A number of the books that Giese 652, 672, 673, (1925) 268 45 S.Ct. that the York U.S. theory of relevance

Neither the 632, 1138.)5 argued proposed nor that 69 L.Ed. Government First can withstand my Brother Trask is admission and use of “Revolution” The scrutiny. The Government’s Amendment acceptable if it had constitutionally no more jury, to was theory, argued which it the No for inferences impeachment. been used may author of a book the ideas of an the constitutionally be drawn about can be to the reader of the properly attributed on of of book readers the basis character against prove him to book and then used they advocacy of the books read. Abstract crime, to disposition commit a motive to constitutionally protected. is violence action, proof that he undertake criminal (1969) 395 (Brandenburg v. Ohio uses is charged. the acts None of these did 447-48, 430.) L.Ed.2d 89 S.Ct. Freedom of constitutionally permissible. print utter or to corollary right of the if the totally destroyed speech would be right advocacy of is the to listen or violence the prosecutor of the fell across shadow The use of to read violent exhortations. read. we Even pages books reading, including reading the of vio book McCarthyism, evil of we did thralldom books, person’s impeach character lent concept of book guilt not embrace the with utterly incompatible is constitutional association. speech.6 free protections afforded sure, ob To be as Mr. Justice Holmes It is an incitement. “Every served: idea V believed, itself and if is is offers for belief in majority is conflict with opinion outweighs on acted unless some other belief 1978) v. United States McCrea energy it or some failure of stifles McCrea, In was F.2d 1083. defendant only movement at its birth. The difference possession unregistered for of an convicted expression opinion between the of an and destructive device in violation of 26 U.S.C. sense is the incitement in the narrower 5861(d). appeal One of his contentions § result. Elo speaker’s enthusiasm admitting into was that court erred may fire to reason. ... If quence set “Improvised two evidence books entitled long expressed in run the beliefs Sabotage and Munitions Handbook” “OSS proletarian dictatorship designed are to be The court held & Demolition Manual.” accepted by the dominant forces of improperly admitted the evidence was community, meaning free only of have the because the “titles alone would given is their speech should be (583 tendency prejudice the defendant.” way.” (Mr. chance and have their Justice 1086.) Holmes, held that the error was F.2d at We with whom Mr. Justice Brandéis harmless, concurred, however, the evidence dissenting in v. New because Gitlow Holmes, perfect polity quoting not mean a more and the belief In Mr. Justice I do imply clumsy prose approach comport in “Revolution” that the no other would with eloquent anyone’s dignity upon promise is or that it would kindle of individual choice rests, incitement, prosecutor political system reason. The which the our [citation engender, prejudice intended was the of omitted] jury against prosecutor at- to whom consequence many, of this the immediate “To inflammatory tributed rhetoric. may appear to be often verbal freedom tulmult, discord, even offensive utterance. Mr. 6. As Justice Harlan reminds us Cohen may That at times filled the air seem (1971) California 403 U.S. is, cacophony in this not a with verbal sense right of free L.Ed.2d 284: “The constitutional strength. sign of weakness but expression society powerful in a as is medicine * * * why holly neutral futilities That ‘[w] designed populace diverse and as ours. It is protection speech as under of free come governmental remove re- intended sermons,’ fully poems as do Keats’ or Donne’s discussion, public straints from the arena of ., long why are ‘so the means putting the be decision as to what views shall peaceful, meet need not communication us, largely voiced into the hands of each acceptability,’ omit- [citations standards hope freedom will the use such ted].” ultimately citizenry produce capable a more overwhelming many people subsequently who McCrea and the co-conspirators. became Like prosecutor “made no mention the fin- those gerprints on ‘From The Movement opening jury, books in his statement Toward Revolution,’ Myere’s testimony light shed capitalize nor he attempt did on them conspirators’ on the association with each during the trial itself.” McCrea did other. It also tended to show that Giese prosecutor contend that the “referred to the leadership role exercised vis-a-vis the oth- any inflammatory way during literature conspirators. By conducting er discussions and, any portion proceedings,” there- topic poli- on of mutual interest —radical fore, panel augment did not need to by furnishing recommending tics —and or closing record to include statements of subject, Mey- books on that Giese attracted (583 n.3.) counsel. at 1086 F.2d (and perhaps fellow-prisoners er his Severin There are distinctions between McCrea Wallace) group and to the at the bookstore Giese, and but those distinctions reinforce eventually conspiracy.” formed the prejudicial nature of the error in Giese’s (Judge Opinion, 1194-1195.) Trask’s supra, at eases, case. In both the Government used I cannot understand how Giese’s state- books for purpose showing motive or prisoners ment to the anything to do disposition charged. to commit the crimes proof acquainted with with McCrea, against Unlike the case Giese was Meyer any or alleged of the other co-con- tenuous, the prosecutor emphasized “Revo- spirators. premise The unarticulated during Giese, lution” interrogation his Judge appears Trask’s discussion to be that and he thoroughly capitalized on the con- persons politics pre- who discuss radical are tents of the book his summation to disposed conspiracies. to form That infer- jury. constitutionally impermissible. (E. ence is Ohio, g., Brandenburg supra, 395 U.S. VI 444, 1827, 430; 89 S.Ct. 23 L.Ed.2d Noto v. The district court erred in admitting tes- (1961) 290, United States 367 U.S. 81 S.Ct. timony participation politi- about Giese’s 1517, 836.) 6 L.Ed.2d cal discussions and his recommendation of admitted, certain books. This evidence was VII objection, over during the Government’s Prosecutorial in argument misconduct impact case-in-chief. The intended of this prosecutor was extensive in this case. The testimony place was to before the jury witnesses, vouched for the Government’s unpopular political Giese’s views and his produce commented on Giese’s failure to interest unpopular literature expressing evidence, certain injected personal belief those views. The had no rele- guilt, suggested that a co-defend- vance issue in the case. Giese had confession, Giese, ant’s inadmissible as to not been politics indicted for his or for his corroborated other evidence Giese. tastes, literary and he should not have been Although defense counsel did not properly put on trial for either. protect by appropriate objections the record

Judge Trask says Meyer’s testimony motions, sufficiently per- the errors were was relevant provided “because it purview nicious to fall within the with relationship plain information about his error doctrine.7 52(b), Crim.Proc.; defendant, depriving See, Rule Fed.Rules him of a fair trial. e. (9th 1977) 967, g., (1957) 339, States v. Cornfeld Cir. 563 F.2d Lawn v. United States 355 U.S. 970; (9th n.15, 311, 321; United States v. Preciado-Gomez Cir. 359-60 2 S.Ct. L.Ed.2d Unit 1976) 935, 942; Co., 529 F.2d Socony-Vacuum United States v. Perez ed States v. Oil Inc. (9th 1974) 167, n.10; (1940) Cir. 491 F.2d 173 & Unit- 310 U.S. 60 S.Ct. 237 — (9th 1971) ed States 1129; v. Memoli Berger (1935) Cir. L.Ed. v. United States inquiry 160. The 78, 84-89, 1314; critical is whether 79 L.Ed. circumstances of the trial as a whole the re- 1974) United States v. Greenbank prejudicial likely marks were so as to make F.2d 188-89. they jury adversely influenced the be- charged, “We are as I mentioned credibility upon attacks To counter fore, for this case responsibility with the prosecutor at- McSherry Meyer, all to handle it and related cases. those witnesses to cloak tempted the Government.8 I handled them— credibility inception attached to From its have instance, prosecutor jury, told the misunderstand, might For while I let’s not way Now, other “. . . there is one attorney not be world’s best they [McSherry Meyer] could both my Roman numerals while I don’t know did, things, as and that said the same certainly I know the facts in . if manufactured would be the Government case, . this put them the evidence or if Government you going are jury, “Members of the perjured themselves. That is anoth- decide, having after observed us have to gentlemen must con- you er fact ladies weeks, or not we for two whether would sider. willing a witness and to be a be to bribe you that? Do “Did Government do Rosen, McSherry party perjury Mrs. presented people believe that who have this Meyer. weeks, you the last two would case to this, if we really “Let’s consider were present evidence which was manufacture or ” case, you think we out to fix the don’t . . perjured? . up better? . could done rebuttal, prosecutor commented at In McSherry motives of restated the [He evidence, length on the and added: corroborative evi- the truth and the tell “ Now, for the at- . the reason . . dence, each, “Did we make it asking as ploy is old upon an tacks the Government up?”].” is, you are faced with ploy and the when repeatedly prosecutor commented The case, Govern- strong you attack produce evidence.9 upon Giese’s failure ment; you Attorney’s U. S. attack the suggested example, For counsel had defense FBI; office; attack you you attack not credible because he was Meyer witnesses; you attack the Government’s unstable, emotionally had had mental jury try let the you motives but never its breakdowns, long and had criminal record. . against case the defendants. said, not The “The defense did prosecutor happened what in precisely And that is psycholo- present psychiatrist nor one one course of this trial. however, you sat and said gist, who before “Now, Bay’s Mr. state- appreciate I suffering Lynn Meyer is from this Bruce fabrication, there is ment if tell the illness and . . . cannot mental falsehood, bribery this perjury he truth, can remember nor ... counsel case, it rests at Government’s what occurred.” that face- we failed to face table because many letters to Mrs. Meyer had written true, thing such a oc- on. And it’s if during incarceration before trial Rosen his curred, people on the at the blame falls to show that and evidence was introduced person standing the counsel table and destroyed had been all of the letters you right before now. almost believed, buttressing prose- pitfalls Govern extended are involved in the There two plain requires er vouching reversal as ment’s witnesses cution’s fоr its witnesses: first (10th Ludwig credibility interjection Cir. United States ror. See Government’s 142-43; case; sugges- 1974) Hall v. as a fact the second is the 582, 587-88; 1969) (5th F.2d has tion that the Government information States Cir. 1967) (5th Gradsky Cir. which was at trial which v. United States not introduced .the leads it to believe that its witnesses are credi- F.2d 709-10. ble, g., States, supra, e. Lawn v. United 359-60, n.15, 1959) at Where as Wagner 78 S.Ct. 311. v. United 9. See here, prosecu- (holding turns on case the defendant similar F.2d 883-84 government error). plain whether are or defense witnesses torial remarks to be person known, who have conclusively Defense counsel could Meyer’s request. fact, a vehi- present that the letters were was not at such conver- imply tried to sation, they and he did not make an admission to rigging cle for attempt affair.”) conceal the Ira Keller can destroyed in No excuse be prosecutor’s reference to found for from the defense. Mrs. exculpatory matter as a witness. she had two letters failure to call admitted that Severin Rosen by Meyer. with written The defense knew that Giese prosecutor her The letters and have them anyone, asked to see the call but he obligation had no also exhibits. The defense did not marked as knew that was an unindicted co- Severin prosecutor offer them into evidence. conspirator and that Giese could not have they ever introduced? argued: “Were testimony in the face of compelled Severin’s they They Were ever introduced? had two privilege Amendment Severin’s Fifth Meyer to letters written Mrs. Rosen respect very conspiracy to the for which Now, question. time in why Giese was on trial.10 weren’t introduced? Was it because prosecutor was a also said there was information the letters which that, clothing and sheep’s wolf in under- Meyer prejudicial was favorable to exterior, sophisticated neath he “is perhaps spec- defendants or both? You can said, very dangerous individual.” He also herring ulate on that. It’s another red to ease,” certainly “I know the facts in this your divert attention . . . .” Giese’s and added that he was “sure” that the objection speculate to the invitation to McSherry’s reference to “Giese’s Volks” and overruled. plan robbery for the bank was to Giese’s prosecutor repeatedly The referred to vehicle, own the one that and not he had revolver, ownership alleged- of a .38 given McSherry’s to wife.11 ly bombing, the Road used Foster jury conjecture and the asked to about prosecutor rounded out his errors producing gun Giese’s reasons for not the referring to a confession which was not trial. confession, admitted as to Giese. The intro- Wallace, duced as to contained admis- The prosecutor’s most serious error in this police sions that he had monitored radio question connection was his rhetorical bombings. the transmissions about jury asking why, innocent, the if Giese were McSherry Meyer also testified that this produced he had not testify Severin to role. In his been Wallace’s efforts to (“ him. . . . Max there Severin was witnesses, credibility bolster the of his but did he call Max He Severin? [Giese] said, instance, prosecutor did not call Max because this man “For on the issue Severin corroboration, something something signifi- has to hide. He has one of the more to hide otherwise he pieces would have called the cant of corroboration in this ease is clearly held that the court should have intervened 10. This is not a case of an isolated produce prosecutor a allusion to failure to evidence as in a when the called the defendant Tierney 1970) (9th “hoodlum”). Cir. also Steele v. United States See 643, 646, Forsberg F.2d (9th v. United States 1955) 222 in which the Fifth Cir. F.2d 1965) Cir. 351 F.2d 249. grounds but stated Circuit reversed on other personally prosecutor that where the stated he Interjection prosecutor’s 11. of the in own belief guilty the defendant to be and charac- believed guilt grounds of a defendant is for reversal. Hyde” Jekyll him as a “Dr. and Mr. terized 1970) (3d See United States v. Schartner prejudicial even in the absence was so objection, (reversible error in the re- judge “ should have the district say you sincerity T mark with all the I can stepped prosecutor in- to admonish defendant, you muster that if do not convict the uisregard jury the remarks. Id. at struct the States, guilty escape’.”); will Hall v. United supra, (remark try 419 F.2d 585-86 was “we prosecute only guilty.” The Hall court also I appeal. review voted this be Okay, Meyer two confessions. Wallace done, tentatively believing original we lying, why do McSherry, if are majority impedi- Opinion confessions?” constituted have the two Wallace growth ment to the intellectual of our citi- fully prosecutorial blunders agree I colleagues vot- zenry. majority my are jury a arguing a difficult case before contrary, ed to the cause now has Each case always grounds for reversal. panel. been to the original returned This own be in its context must examined true, I being I have concluded that am no impact prosecutorial indis- ascertain the longer judge charged directly who is with particular case.12 In this cretions in the responsibility further in connection case, prosecu- we simply do not brief appeal. Accordingly, with the I have decid- series of instances lapse, torial but whole ed, reluctance, with some that considera- of misconduct.13 policy, particularly tions of the deference panel autonomy, that should accorded to be VIII setting should restrain me from forth at length tentatively with I Although agree I do not all views that hold. I majority’s reasoning in the discussion exercise that self-restraint. case, I agree

remaining points other majority’s conclusion

claimed are either non-existent errors

harmless.

Prejudicial errors the admission of evi-

dence, and non-constitu- of constitutional dimension, prosecutori- together with

tional argument de-

al misconduct in

prived of a fair trial and his convic-

tion should be reversed.

ELY, Judge: Circuit panel originally with the concerned Judges

present consisted of Hufsted- appeal

ler and and District Trask this Court

Judge sitting by designation. Sweigert,

Judges Sweigert issued the ma- Trask

jority Judge with Hufstedler dis- Opinion,

senting. service our active judge

A Court sit, banc, and en full Court

requested our States, supra, 84-89, g., v. United (1st U.S. at 55 295 12. E. Patriarca v. United States Cir. Ludwig, 629; supra, 1968) States v. United F.2 & nn.6-7. S.Ct. 318-22 142-43; v. United States Fernandez at F.2d Greenbank, Compare, g., 1294, 1299-1303; v. e. United States Unit- (5th 1974) 496 F.2d Cir. supra, 188-89; 1972) Cummings v. (9th United States 491 F.2d at States v. 468 F.2d ed Cir. 1201; States, 1971) supra, ‍​​​‌‌‌​​​‌‌​​‌​​‌​​​​‌​‌​‌​‌‌​‌​​​‌​‌​​​​‌​​​​‌​‍United (9th Salcedo 274, 277-78; Cir. 452 F.2d v. United Hall Zumpano 1970) States, Gradsky v. 436 F.2d 585-87; su- at F.2d Tierney, supra, 424 F.2d 539; United States v. Wagner 709-10; pra, v. United at States, 646; Forsberg supra, v. United States, (reversing supra, 263 F.2d at 883-84 (no F.2d counsel reversal where defense may have af- effect of error where cumulative object prejudicial failed remark to isolated trial). fected outcome Berger statement) prosecutor’s closing

Case Details

Case Name: United States v. Frank Stearns Giese

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 20, 1979

Citation: 597 F.2d 1170

Docket Number: 74-3407

Court Abbreviation: 9th Cir.