United States v. Giese. 597 F.2d 1170 (9th Cir. 1979)
Author: Anonymous

Facts: The Df, an author and a doctor, was arrested with three others for his part in a conspiracy for plotting to blow up armed forces recruiting centers.  His fingerprints were found on certain pages of the book.  The book was printed in 1971 and the FBI seized the book in 1973.

Issue: Whether the government’s use of a book as evidence against him, to show association with fellow conspirators, and then to rebut Df’s testimony as to character was admitted in err?

Holding: No, it was proper to introduce the book to rebut the contentions of the Df’s claims, and show association with co-conspirators and as rebuttal. 

Procedure: Jury trial conviction for conspiracy to commit offenses against the U.S., Affirmed.

Rule: The prosecution is prohibited from introducing in its case in chief evidence of a trait of the accused’s character for the purpose proving that he acted in conformity therewith on a particular occasion, but where the accused himself offers such evidence, the prosecution may respond with evidence to rebut the same.

Rationale: The conspirator’s association with each other, prior to the time the individuals fingerprints were placed on the book, was relevant to the issue of whether they later formed an agreement.  Evidence of behavior and relationships antedating the period covered by the indictment is generally admissible as bearing on the existence of the conspiracy.  The book’s probative value outweighed the title of the book’s slightly prejudicial effect.   One it corroborated witness testimony that the Df associated with the other Dfs, affording him an opportunity to enter into an agreement.  Since an agreement is an element of a conspiracy, evidence of association is relevant.  Association did not cease to be an issue until after the govt’s case rested.  The govt was limited in the use, only showing association, until the Df opened the door by testifying about the contents of 18 other books and suggested that they were proof of his peaceable character. In his closing argument, Df’s atty emphasized the his client’s pacifist nature was his defense.  Although the State is denied the ability to offer evidence of Df’ prior trouble with the law, criminal acts, it is available to the Df, because character is relevant in resolving probabilities of guilt.  The price is that the entire subject is open for the State on rebuttal to that subject.  Peaceableness is a character trait, and the prosecution may respond with evidence to rebut.