United States v. Frank Stearns Giese

Frank Stearns Giese appeals from his conviction for conspiracy to commit offenses against the United States. We affirm.

I

Early on the morning of January 2, 1973, a bomb exploded at a United States Navy recruiting center in Portland, Oregon. Two days later a United States Army recruiting center in that city was dynamited. These acts of terrorism were perpetrated in furtherance of a well-organized conspiracy, the objects of which were to dramatize the conspirators’ opposition to America’s participation in the Vietnam War and to disrupt military operations in the Portland area. The evidence showed that Giese played a leading role in the conspiracy.

Giese, a professor of French at Portland State University, met some of his co-eonspirators through the Radical Education Project bookstore which he founded in the fall of 1971. He sent books to prisoners at the Oregon State Correctional Institution, and in January 1972 he and James Cronin, *1175 who also worked at the bookstore, began leading group discussion sessions at the prison. The inmate participants included Lynn Meyer, Max Severin, and Chester Wallace. Meyer contacted Giese at the bookstore shortly after he was released from…

concurring:

I concur in Judge Trask’s affirmance of appellant’s conviction and judgment after his painstaking analysis of the record, including, of course, his conclusions concerning the use of the book (Government Ex. C 49) during the trial.

On this particular issue I merely summarize those points made by Judge Trask which have led me to this concurrence.

The Introduction of the Book Into Evidence

1. The book in question was introduced into evidence during the government’s case in chief, not only without objection or any limitations motion, but, indeed, as part of a stipulation concerning the admission of this and 26 other items.

2. The contents of the book were never referred to by the government during its case in chief nor was the book, itself, mentioned except in connection with testimony that the book bore the fingerprints of defendant Giese and other alleged conspirators.

3. Under these circumstances the “plain error” standard is applicable so far as the introduction of the book is concerned.

4. There was no plain error on the part of the trial judge in allowing the book to go into evidence since the book, coupled with the fingerprint evidence, was relevant on the…

dissenting:

Dr. Giese’s conviction for conspiracy must be reversed because it was obtained by patently inadmissible evidence of the contents of the book “From the Movement Toward Revolution”, which the prosecutor forced Giese to read to the jury after defense counsel’s objection to the admission of the book had been overruled. The prosecutor used the contents of the book to convince the jury that the ideas expressed in the book were Giese’s own and that he acted on those ideas to form a conspiracy to blow up recruiting centers. Giese was thus convicted of conspiracy by book association in egregious violation of the guarantees of the First Amendment.

The majority holds that Giese cannot complain about the errors because (1) he failed to preserve the point during the Government’s case-in-chief, (2) he invited the errors by testifying to his peaceable character, thus opening the door to impeaching him by proving that he read a book advocating revolution, (3) he invited the errors by introducing samples of books that he carried in his bookstore, thus opening the door to evidence that he read this particular book, and (4) no plain error occurred either in admitting the book’s…

597 F.2d 1170 4 Fed. R. Evid. Serv. 689 UNITED STATES of America, Plaintiff-Appellee, v. Frank Stearns GIESE, Defendant-Appellant. No. 74-3407. United States Court of Appeals, Ninth Circuit. May 2, 1979. Rehearing Denied June 20, 1979. Doron Weinberg, San Francisco, Cal., for defendant-appellant. Sidney I. Lezak, U. S. Atty., Charles H. Turner, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee. As amended on denial of rehearing and rehearing en banc March 16, 1979. Appeal from the United States District Court for the District of Oregon. Before, HUFSTEDLER and TRASK, Circuit Judges, and SWEIGERT, * District Judge. After its opinion of February 16, 1978, was published in the advance sheets, the panel withdrew the opinion in order to afford the full court an opportunity to decide whether to hear the case en banc. See Editor's Note, 569 F.2d 527 (1978). The panel amended its opinion, and a majority of the full court voted to deny en banc consideration. Subsequently an order was entered denying the petition for rehearing and rejecting the suggestion for rehearing en banc. The panel now files its revised majority opinion, together with the views of the minority and the concurring…