UNITED STATES OF AMERICAN, PETITIONER v. JOHN CLYDE ABEL

   No. 83-935

   In the Supreme Court of the United States

   October Term, 1983

   Reply Memorandum for the United States

   Respondent's Brief in Opposition shows both why the court of
appeals' decision is absurd and why review by this Court is needed.
Explaining what the decision below will mean, respondent provides the
following hypothetical (Br. in Opp. 4-5):

         A more proper example of the Court's ruling would be
      exemplified in a case where a Klu Klux Klansman is charged with
      the homicide of black man.  Would the defendant's membership in
      the Klu Klux Klan be admissible evidence?  Clearly such evidence
      should be barred because of the great danger that a jury would
      convict the defendant due to his association with the Klu Klux
      Klan.  However, this evidence would be admissible under the
      Ninth Circuit Court's ruling, if the defendant had espoused the
      beliefs of the Klu Klux Klan, and such beliefs were probative of
      the defendant's commission of the crime.

   We submit, contrary to respondent's contention, that in the above
hypothetical, evidence of the defendant's membership in the Klan would
be relevant to show motive (Fed. R. Evid. 401) even if the prosecution
could not produce a witness to testify that the defendant had espoused
the Klan's beliefs.  And if a fellow Klansman testified on the
defendant's behalf, we submit that their common membership would be
admissible to show that witness's bias.

   In addition, as noted in our Petition (at 15), the court of
appeals' decision may cause a great injustice to the defense as to the
prosecution.  To modify respondent's hypothetical, suppose a black
defendant were on trial and the witnesses against him were Klansmen.
Would impeachment on the basis of the witnesses' membership in the
Klan be barred on the ground adduced by the court of appeals that
"mere membership * * * without more, has no probative value"?  Pet.
App. 5a.

   Respondent concedes (Br. in Opp. 2) that "a witness' bias may be
explored by examining the witness' relationship to the party." Common
membership in a group is one such relationship.  Contrary to the
holding of the court of appeals and respondent's submission,
membership in a group -- whether the Aryan Brotherhood, the Ku Klux
Klan, or a boy scout troop -- often has probative value.  As
respondent's telling hypothetical shows, the decision below, by
precluding such proof, has the potential to cause most unjust results.
 When probative evidence, such as membership in the Klan or Aryan
Brotherhood, is held inadmissible and a guilty defendant is acquitted,
it will be too late to seek review.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be granted.

   REX E. LEE

      Solicitor General

   MARCH 1984