U.S. v. Giese

• Decision Date: 02 May 1979
• Docket Number: No. 74-3407,74-3407
• Citation: 597 F.2d 1170
• Parties: 4 Fed. R. Evid. Serv. 689 UNITED STATES of America, Plaintiff-Appellee, v. Frank Stearns GIESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1170

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 opinion of Judge Sweigert.

TRASK, Circuit Judge:

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-conspirators through the Radical Education Project bookstore which he founded in the fall of 1971. He sent books to prisoners at the Oregon State Correctional Institution, and in January 1972 he and James Cronin who also worked at the bookstore, began leading group discussion sessions at the prison. The inmate participants included Lynn Meyer, Max Severin, and Chester Wallace. Meyer contacted Giese at the bookstore shortly after he was released from prison on furlough in November 1972. Giese introduced him to various people, one of whom was Leslie McKeel. She, in turn, introduced Meyer to Robert McSherry, James Akers, and several others. McKeel, McSherry, Akers, and Cronin jointly operated the Sundahl Painting Company. Meyer went to work for the company after receiving his parole on December 5, 1972. The Sundahl employees held business meetings and political discussions at Giese's bookstore. Akers and Severin, along with Cronin, worked there part-time.

McSherry and Meyer were the government's principal witnesses at trial. According to McSherry, the discussions at Giese's bookstore and elsewhere centered around the participants' vehement opposition to the Vietnam War. Eventually they grew tired of doing nothing but talk; they decided there was a need for direct action. On December 10, 1972, McSherry, Wallace, Severin, McKeel, Akers, Meyer, and two others held a five-hour meeting at Giese's farm. Giese greeted them but did not take part in the discussion. They agreed, as McSherry put it, "to do everything within (their) power to stop the war, to disrupt the war for at least as far as Portland went and as much as (they) possibly could." R.T. at 547. Believing violence was necessary to accomplish this end, they discussed bombing recruiting centers, robbing National Guard depots, and other crimes.

At this stage Giese had not yet agreed to finance the conspirators' operations. Needing money with which to buy weapons, they devised a plan to burglarize the residence of a wealthy Portland industrialist named Ira Keller. The attempted break-in took place on December 12, 1972, two days after the meeting at Giese's farm. Giese had become a full-fledged participant in the conspiracy by this time. According to McSherry, he drove several of his fellow conspirators to the Keller residence in a rented van. When McSherry, Wallace, Severin, and Akers tried to enter the house, an alarm sounded and everyone fled. The following day Giese met with Akers, Severin, McKeel, Wallace, Cronin and two others at Cronin's apartment. They discussed the abortive Keller burglary, and Giese blamed their failure on a gross lack of planning.

The conspirators' next act of violence was arranged with greater care. While McSherry, Cronin, and Akers studied a book called the Blaster's Handbook to learn bombing techniques, Severin and McKeel obtained some dynamite. On January 2, 1973, Wallace, Cronin, Akers, Meyer and McSherry committed the Navy recruiting center bombing. There is no evidence that Giese actively participated in the January 2nd bombing. However, at a four-hour meeting held at his apartment on January 3, 1973, he expressed approval of what the bombers had done, although he criticized them for selecting a target in a low-income neighborhood. He suggested that terrorist activities directed against recruiting centers in downtown Portland or in the white suburbs would win more popular support. When he was informed that the next bombing target an Army recruiting center satisfied his criteria, Giese agreed to take part, and he helped to plan the operation. He also promised his confederates enough money to buy a vehicle and rent a hideout for storing explosives, ammunition, and stolen weapons.

McSherry and Meyer testified that early on the morning of January 4, 1973, Giese drove them and Akers to the Army recruiting center. Giese remained in his car while McSherry and Akers planted the explosives and Meyer stood watch. Meyer carried a pistol given him by Giese, and Giese was armed with a .38 caliber revolver. Their mission accomplished, Giese drove the bombers back to his apartment where they celebrated after learning that the bomb had exploded.

McSherry and Meyer testified that the conspirators used money given them by Giese to rent an apartment on Ankeny Street in Portland which they used as a headquarters. Meyer said Giese also gave them firearms, including an M-1 carbine. On January 8, 1973, Giese met with McKeel, Severin, Wallace, Meyer, Akers, McSherry and Cronin at the Ankeny Street apartment. They discussed plans to rob a gun store. According to McSherry, Giese told them they were trying to do too much, too soon, and he urged them to split up and go underground for a while. When some of the others indicated their intention to go ahead with the gun store robbery, Giese refused to participate. He saw McSherry and the others again on January 13, 1973, outside the Ankeny Street apartment and at his farm. Giese was told that the conspirators would be arming themselves in the near future, and he again urged them to go underground. So far as the record shows, Giese did not take part in the gang's robbery of the Allison and Carey Gunworks in Portland on January 15, 1973, their robbery of a bank, their plot to rob a restaurant and blow up a sheriff's office, or their other crimes.

II

On February 28, 1974, a federal grand jury for the District of Oregon returned a joint ten-count indictment charging Giese, Akers, Cronin, Meyer, and Wallace with a variety of offenses and listing McKeel, McSherry, Severin, and one other person as unindicted co-conspirators. Giese was named in six of the counts. Count IV charged him with misprision of a felony (the January 2, 1973, Navy recruiting center bombing). Counts V through VIII charged him with committing various offenses in connection with the January 4, 1973, Army recruiting center bombing, including possession of destructive devices, malicious destruction of government property, carrying firearms during the commission of a felony, and injury to government property worth more than $100. Paragraph one of Count X, which alleged a violation of 18 U.S.C. § 371, ¹ said Giese, the other defendants, and the unindicted co-conspirators "did unlawfully, wilfully and knowingly conspire, combine, confederate, and agree together and with each other . . . to commit and cause to be committed certain offenses against the United States and other persons and institutions by means of acts of violence, terrorism and disruption, including the use of explosives to damage and destroy and to attempt to damage and destroy certain real and personal property, both public and private, including the property described in Counts II and VI of this Indictment which are realleged and incorporated herein by reference." ² Count II alleged the malicious destruction of the Navy recruiting center and Count VI alleged the malicious destruction of the Army recruiting center. ³ Prior to trial, Meyer entered a plea of guilty to the conspiracy charge and agreed to testify as a government witness. Conspiracy charges against Akers and Wallace were dismissed, as was the Count IV misprision charge against Giese. On October 16, 1974, the jury found Akers and Wallace guilty on Counts I through III and Counts V through VIII and found Cronin guilty on Counts I through III and Count X. The jury acquitted Giese on Counts V through VII but found him guilty on Count X (conspiracy). Because Giese did not file his appellate brief on time, this court severed his case from the appeals of the other defendants. On August 26, 1976, we affirmed in part and vacated in part the convictions of Akers, Cronin, and Wallace. Cronin's conviction for conspiracy was affirmed. United States v. Akers, 542 F.2d 770 (9th Cir. 1976).

In challenging his conviction for conspiracy, Giese raises six separate issues:

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

(2) Did the district court err in...