Page 1 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

THOMAS K. COAN, OSB #891732

tom@tomcoan.com

Attorney at Law

1001 SW Fifth Ave., Suite 1400

Portland, OR 97204

(503) 221-8736

Attorney for Defendant

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

PETER SANTILLI,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

Case No. 3:16-cr-00051-BR

DEFENDANTS’ MEMORANDUM 

REGARDING APPLICATION OF 

STRICTISSIMI JURIS AND 

REQUEST TO RECONSIDER 

ADMISSIBILITY OF COCONSPIRATOR STATEMENTS 

I. The doctrine of strictissimi juris applies in cases such as this where group 

association and First Amendment rights are at issue.

Strictissimi juris is the procedural doctrine that supports the substantive prohibition 

against a defendant being found guilty by association. Steven R. Morrison, Strictissimi 

Juris, 67 Ala. L. Rev. 247, 249–50, 253 (2015). It requires the separate consideration of 

each individual defendant in a group and the judgment of that defendant’s actions and 

intent independently. The doctrine specifically applies to situations where an individual is 

engaged in a substantial amount of First Amendment activity such that discerning a 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 1 of 14
Page 2 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

criminal conspiracy in that activity is difficult. See United States v. Stone, 848 F. Supp. 2d 

719, 723 (E.D. Mich. 2012) (It “comes into play for crimes that obviously implicate the 

First Amendment.”). It is intended to ensure that a verdict rests solely on the conduct and 

mens rea of the individual. Applied to protester situations, it protects the First Amendment 

right to speak, assemble, and associate when a defendant is a member of a group that 

engages in First Amendment conduct but may also engage in crime. The Seventh Circuit

applied strictissimi juris to United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), the 

Chicago Seven case arising out of a protest at the 1968 Democratic National Convention, 

The court noted that strictissimi juris applies "when the group activity out of which the 

alleged offense develops can be described as a bifarious undertaking, involving both legal 

and illegal purposes and conduct, and is within the shadow of the first amendment." Id. at 

392.

A. Supreme Court application of the doctrine

“Strictissimi juris” means “of the strictest right.” United States v. Cerilli, 603 F.2d 

415, 421 (3d Cir. 1979). Although originating in 1800s surety law, the Supreme Court first

applied the doctrine in criminal cases in 1961. In Noto v. United States, 367 U.S. 290 

(1961), the defendant had been charged and convicted based on the membership clause of 

the anti-Communist Smith Act. The defendant was a member of a group that advocated 

overthrowing the federal government. Much of the government’s evidence came from a 

witness reading excerpts of communist materials and testimony about the defendant’s 

group planning to gets supporter elected to leadership roles in the United Auto Workers. 

The Supreme Court announced the modern strictissimi juris rule, holding that this type of 

crime

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 2 of 14
Page 3 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

must be judged strictissimi juris, for otherwise there is a danger that one in 

sympathy with the legitimate aims of such an organization, but not 

specifically intending to accomplish them by resort to violence, might be 

punished for his adherence to lawful and constitutionally protected purposes, 

because of other and unprotected purposes which he does not necessarily 

share. 

Noto, 367 U.S. at 299–300; see also Hellman v. United States, 298 F.2d 810, 812 (9th Cir. 

1961) (discussed infra). 

The same day, the Supreme Court decided Scales v. United States, 367 U.S. 203 

(1961), where it defined the limits on First-Amendment protected group membership and 

activity, although without discussing the doctrine expressly. Membership could be 

criminal when the group advocated for violent overthrow and the individual defendant 

knows of that purpose and specifically intends to further it. While the Scales opinion does 

not specifically mention strictissimi juris, it does highlight the need to focus on the 

individual. 

B. Ninth Circuit application of the doctrine

In Hellman v. United States, 298 F.2d 810, 811 (9th Cir. 1961), the Ninth Circuit 

waited until the Scales and Noto opinions were issued before reviewing the case of a

Communist Party member who was convicted under the Smith Act’s membership clause. 

The court, having noted the recent application of strictissimi juris by the Supreme Court, 

focused on whether there was sufficient evidence that the defendant had a “specific intent 

to bring about violent overthrow of the government as speedily as circumstances would 

permit.” Id. at 812. If that specific intent was not proved, “the conviction cannot stand 

however strong the proof may be that he was an active and knowledgeable member of an 

organization which advocated the violent overthrow of the Government.” Id. 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 3 of 14
Page 4 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

The court reasoned that because the Communist organization had both legal and 

illegal goals, a member might not intend the illegal goals. Instead, “an active member with 

knowledge of both the legal and illegal aims might personally intend to effectuate only the 

Party’s legal objectives . . . .” Id. Thus, the fact of active membership and knowledge of 

the organization’s illegal goals do not allow an inference that the member had illegal intent: 

“Such an inference is not a permissible one especially where, as here, the result of a 

mistaken finding would be to impair legitimate political expression or association.” Id. 

The Ninth Circuit articulated a test of the sufficiency of the evidence: “If Hellman’s 

activity as a knowledgeable member of the Party was of a kind which is explainable on no 

other basis than that he personally intended to bring about the overthrow of the 

Government as speedily as circumstances would permit, personal illegal intent could 

properly be inferred.” Hellman, 298 F.2d at 813. The court listed examples of activity 

that would meet this test: The “collection of weapons and ammunition in substantial 

quantities, or the conducting of field surveys to ascertain ways and means of 

sabotag[e] . . . .” Id. Without such personal advocacy on Hellman’s part, the only other 

way that his illegal intent could be proved was through evidence he urged and encouraged 

contemporary legal or illegal action that could only have been motivated by an intent to 

accomplish violent overthrow of the Government. Id. at 813–14.

The court acknowledged that the government proved he was an “exceedingly active” 

member, organizer, recruiter, and promoter of the group.1 However, although Hellman had 

discussed force and violence, he did so in his role as a teacher of his party’s beliefs, not in 

 

1 Hellman “served as an organizer for the states of Montana and Idaho. He regularly 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 4 of 14
Page 5 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

his personal advocacy. Id. at 814. Hellman urged Party members “to immediately 

undertake action.” Id. Among other things, he encouraged students to take leadership 

positions and taught that they must advance the conditions necessary “to produce the crisis 

which the Communists need to succeed.”

2

 Id. He asked students to participate in 

elections to expose that change could not be achieved through elections. Hellman, 298 

F.2d at 814. He proposed that the State Board organize an educational program which 

would stress ‘the development of mass agitation and propaganda of all types.’ He prepared 

a plan to accomplish the infiltration of the Farmer's Union in an attempt to dominate it.” Id. 

Even taken together, the Ninth Circuit did not feel that these calls to action 

supported a finding that Hellman had the requisite intent. Without his personally

advocating violent overthrow of the Government, all of his actions were only equivocal. 

Applying its test, the court found that “[c]onsidering these facts alone, or in conjunction 

with his knowledge of the Party’s illegal advocacy, the activity portrayed is explainable on 

the basis that he intended to bring about the Party’s ultimate goals through peaceable 

means.” Id. Accordingly, the court reversed Hellman’s conviction.

////

////

II. The strictissimi juris doctrine at trial

 

2 The Ninth Circuit found this call to action to be “[t]he most damaging action attributed to 

Hellman . . . .” Id. at 814. However, it appeared that Hellman was using one of the 

Communist Party “classics” and was doing no more than outlining the Party program. Id. 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 5 of 14
Page 6 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

While the doctrine is an overarching rule to be considered throughout pretrial 

motions and trial, it particularly applies to evidentiary rulings, Rule 29 motions, and jury 

instructions.

C. Evidentiary rulings

Relevance. In addition to the standards set out in Federal Rules of Evidence 401 

and 402, the court should evaluate the relevance of offered evidence with a mind toward 

the doctrine. This entails being skeptical of how relevant evidence is to any defendant not 

directly linked to it and giving an appropriate limiting instruction. It further entails 

protecting the First Amendment rights of defendants by excluding or limiting the evidence 

even if it may carry some relevance. When making a Rule 403 evaluation of whether 

relevant evidence is unduly prejudicial, confusing, or misleading, strictissimi juris works 

hand-in-hand with Rule 403 because both protect the right to not be guilty by association. 

To protect the right to be judged only on one’s own actions and intent, the doctrine “was 

meant to address the unreliability of circumstantial evidence, the misuse of attenuated 

inference . . . [and] impose a preference for direct evidence, circumstantial evidence 

supported by direct evidence, and ambiguous First Amendment-protected evidence 

supported by direct or circumstantial evidence . . . .” Morrison, Strictissimi Juris at 252. 

Co-conspirator hearsay. The court should consider and rule on the admissibility of 

co-conspirator hearsay under Rule 801(d)(2)(E) as soon as possible, since the government 

is likely to try and show the speech of one defendant is probative as to the intent of others. 

If jurors hear co-conspirator evidence improperly, they are likely to impute that speaker’s 

beliefs onto other defendants. This is exactly the guilt-by-association concern that 

strictissimi juris is designed to prevent. In United States v. Spock, 416 F.2d 165, 173 (1st 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 6 of 14
Page 7 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

Cir. 1969), the court criticized the use of statements by third parties alleged to be coconspirators, noting that the trial court had “fail[ed] to recognize” that “[t]he metastatic 

rules of ordinary conspiracy are at direct variance with the principle of strictissimi juris.

” 

Id. (footnote omitted). 

D. Request to Reconsider Co-conspirator Statements

Defendants respectfully ask the Court to reconsider the admissibility of coconspirator statements, otherwise admissible pursuant to Federal Rule of Evidence 

801(d)(2)(E), under First Amendment of the United States Constitution and pursuant to the 

rule of strictissimi juris. 

When an defendant is charged as a member of a conspiracy, Rule 801(d)(2)(E) 

allows the admission of co-conspirator statements and acts as evidence against the 

defendant where: (1) the conspiracy alleged was in existence at the time the statement was 

made; (2) that the person who made the statement (the declarant) and the defendant were 

participants in the conspiracy, and (3) the statement was made by the declarant during and 

in furtherance of the conspiracy. FRE 801(d)(2)(E). This rule, allowing the imputation of 

guilt via the statements and acts of third-parties, is generally applied to individuals of a 

group defined solely by a criminal purpose. But when a conspiracy charge stems from an 

individual’s involvement in a group having both legal and illegal purposes, and which 

engages in both legal and illegal means of achieving those purposes, the applicability of 

Rule 801(d)(2)(E) requires further analysis under the First Amendment. 

The United States Supreme Court has applied the rule of strictissimi juris when 

reviewing convictions under the anti-Communist Smith Act of individuals based on their 

membership in an organization advocating for the violent overthrow of the government. 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 7 of 14
Page 8 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

Finding that the First Amendment protections applied to defendants prosecuted for 

membership in an organization having both lawful and unlawful purposes, the Court 

determined that the defendant’s intent “must be judged Strictissimi juris, for otherwise 

there is a danger that one in sympathy with the legitimate aims of such an organization, but 

not specifically intending to accomplish them by resort to violence, might be punished for 

his adherence to lawful and constitutionally protected purposes, because of other and 

unprotected purposes which he does not necessarily share.” Noto v. United States, 367 U.S. 

290, 299 (1961); see also Scales v. United States, 367 U.S. 203 (1961).

The Supreme Court’s reasoning also applies in certain conspiracy cases. For 

example, in United States v. Spock, 416 F.2d 165 (1st Cir. 1969), the First Circuit reviewed 

the conspiracy convictions of three anti-war activist defendants for counseling and aiding 

others to avoid the draft. The First Circuit recognized that the crime of conspiracy 

implicates an individual’s First Amendment rights to freedom of association and speech 

when it involves “a bifarious undertaking, involving both legal and illegal conduct,” and 

that when such rights are implicated, it is improper to apply “the panoply of rules 

applicable to a conspiracy having purely illegal purposes * * *,” as “[t]he metastatic rules 

of ordinary conspiracy are at direct variance with the principle of strictissimi juris.” Id. at 

172-74. To address these constitutional concerns, the First Circuit held:

“When the alleged agreement is both bifarious and political within the 

shadow of the First Amendment, we hold that an individual's specific intent 

to adhere to the illegal portions may be shown in one of three ways: by the 

individual defendant's prior or subsequent unambiguous statements; by the 

individual defendant's subsequent commission of the very illegal act 

contemplated by the agreement; or by the individual defendant's subsequent 

legal act if that act is ‘clearly undertaken for the specific purpose of 

rendering effective the later illegal activity which is advocated.’”

Id. at 173 (citing Scales v. United States, 367 U.S. 203, 234 (1961).

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 8 of 14
Page 9 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

Applying this standard, the First Circuit specifically noted the error of allowing the 

government to introduce co-conspirator statements as evidence of a defendant’s specific 

intent because the “specific intent of one defendant in a case such as this is not ascertained 

by reference to the conduct or statements of another even though he has knowledge 

thereof.” Id.

When the criminal activities of a group implicate the rights protected by the First 

Amendment, a higher level of scrutiny and proof should be applied, and the guilt of an 

individual conspirator should not rest on the circumstantial and attenuated evidence 

permitted under Rule 801(d)(2)(E). Otherwise, the crime of conspiracy becomes a vehicle 

by which the government can pursue all members of an organization or movement shown 

to have some illegal aim or be engaged in illegal means without clear proof that a 

particular member specifically intended to pursue that illegal aim or engage in illegal 

activity. 

For example, in United States v. Dellinger 472 F.2d 340 (7th Cir. 1972), the 

Seventh Circuit found that the First Amendment was implicated in a case involving 

protestors convicted of violating the Anti-riot Act, noting:

A realistic approach compels application of a first amendment test to a 

statute which punishes activity leading up to and furthering a riot, for at 

least two reasons. One is that rioting, in history and by nature, almost 

invariably occurs as an expression of political, social, or economic reactions, 

if not ideas. The rioting assemblage is usually protesting the policies of a 

government, an employer, or some other institution, or the social fabric in 

general, as was probably the case in the riots of 1967 and 1968 which are 

the backdrop for this legislation. A second reason is that a riot may well 

erupt out of an originally peaceful demonstration which many participants 

intended to maintain as such. Each participant is entitled to a careful 

distinction between responsibility for the lawful and constitutionally 

protected demonstration and responsibility for the activity for which the 

legislative body validly prescribes a penalty.

Id. at 359.

The underlying assemblage here, protesting the policies of the federal government, 

necessarily implicates the protections of the First Amendment. As such, the Court is 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 9 of 14
Page 10 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

required to make sure that the application of the conspiracy statute and its attendant rules 

do not infringe upon the defendants’ rights of speech and assembly. 

Defendant therefore request that the Court reconsider the admissibility of coconspirator statements under the First Amendment. 

Experts. Should the government offer expert testimony under Rule 702, the court 

should apply strictissimi juris to ensure that any expert does not remotely imply that an 

individual defendant is a part of a group, encourage the jury to find the defendants guilty as 

a group, or otherwise misuse their status as an expert to conflate individual defendants. 

E. Rule 29 Motions

“Strictissimi is, at its base, a sufficiency-of-the-evidence rule.” Morrison, 

Strictissimi Juris at 263. The Ninth Circuit in Hellman articulated “the negate-allalternatives, “clear proof,” and direct evidence” approaches. Id. In applying the doctrine 

while determining the sufficiency of the evidence, the Eighth Circuit has explained that 

“[b]ecause the parties contemplated aims protected by the First Amendment, it is this 

Court’s duty to carefully examine the specific intent of each party so that the illegal aims 

of one or several defendants are not mistakenly imputed to an innocent party.” United 

States v. Casper, 541 F.2d 1275, 1280 (8th Cir. 1976). The Seventh Circuit described the 

application of strictissimi juris as

necessary to avoid punishing one who participates in such an undertaking 

and is in sympathy with its legitimate aims, but does not intend to 

accomplish them by unlawful means. Specially meticulous inquiry into the 

sufficiency of proof is justified and required because of the real possibility 

in considering group activity, characteristic of political or social movements, 

of an unfair imputation of the intent or acts of some participants to all others.

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 10 of 14
Page 11 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972) (emphasis added). 

“[S]trictissimi juris affects the sufficiency of the evidence to convict. It imposes a duty on 

the Court, in the case of defendants accused of membership in an organization with both 

lawful and unlawful aims, to consider evidence against each defendant ‘according to the 

strictest law’ so as to avoid conviction of members who used the organization for 

legitimate purposes.” United States v. Stone, 848 F. Supp. 2d 719, 724 (E.D. Mich. 2012)

(quoting N.A.A.C.P. v. Claiborne Hardware, 458 U.S. 886, 920, 102 S.Ct. 3409, 73 

L.Ed.2d 1215 (1982)). The doctrine’s application to sufficiency of the evidence has also 

been described as “requir[ing] a court to determine if there is sufficient direct or 

circumstantial evidence of the defendant’s own advocacy of and participation in the illegal 

goals of the conspiracy and the court may not impute the illegal intent of alleged coconspirators to the actions of the defendant.” United States v. Markiewicz, 978 F.2d 786, 

813 (2d Cir. 1992) (internal citations and alterations omitted). 

F. Jury Instructions

“The strictissimi juris doctrine emphasizes the need for care in analyzing the 

evidence against a particular defendant in a case of this type, both by the jury in its factfinding process and by the court in determining whether the evidence is capable of 

convincing beyond a reasonable doubt.” United States v. Dellinger, 472 F.2d 340, 393 

(7th Cir. 1972). The jury instructions must tell the jury that evidence of First Amendment 

speech requires a heightened level of scrutiny, and they must also emphasize that they 

cannot assign guilt to any individual based on the actions of the group or other group 

members. 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 11 of 14
Page 12 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

As applied to the conspiracy charge in Count One, strictissimi juris requires a 

heightened standard for the mens rea element to safeguard against an individual being 

convicted based on their association with the group. The Supreme Court has held that the 

government’s evidence of a defendant’s “specific intent” should be judged strictly – or 

strictissimi juris. Noto v. United States, 367 U.S. 290, 299 (1961)

Criminal intent * * * must be judged strictissimi juris, for otherwise there is 

a danger that one in sympathy with the legitimate aims of such an 

organization, but not specifically intending to accomplish them by resort to 

violence, might be punished for his adherence to lawful and constitutionally 

protected purposes, because of other and unprotected purposes which he 

does not necessarily share.

Noto at 299-300,

In Scales v. United States, 367 U.S. 203 (1961) the Court stated that “protection 

for the innocent could be adequately accomplished by requiring that the defendants' 

specific illegal intent be proved to the degree demanded in Noto v. United States.” Id. at 

234. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Supreme Court 

repeated this rule and held that it applied to civil liability also. “For liability to be imposed 

by reason of association alone, it is necessary to establish that the group itself possessed 

unlawful goals and that the individual held a specific intent to further those illegal aims.”). 

Id. at 920. “The government has the burden of establishing a knowing affiliation with an 

organization possessing unlawful aims and goals, and a specific intent to further those

illegal aims.” Healy v. James, 408 U.S. 169, 185-86 (1972). 

With specific reference to the factor of intent, it is said in Scales, at page 229, that 

there must be 'clear proof.' Citing to Scales, in United States v. Spock, 416 F.2d 165 (1st 

Cir. 1969), the First Circuit developed a test for determining a defendant’s specific intent. 

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 12 of 14
Page 13 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

When the alleged agreement is both bifarious and political within the 

shadow of the First Amendment, we hold that an individual's specific intent 

to adhere to the illegal portions may be shown in one of three ways: by the 

individual defendant's prior or subsequent unambiguous statements; by the 

individual defendant's subsequent commission of the very illegal act 

contemplated by the agreement; or by the individual defendant's subsequent 

legal act if that act is "clearly undertaken for the specific purpose of 

rendering effective the later illegal activity which is advocated." Scales v. 

United States, 367 U.S. at 234.

United States v. Spock, 416 F.2d 165, 172-73 (1st Cir. 1969)

In this case, the Court’s jury instructions should require a heightened level and 

standard of proof to make sure the jury is making its determination based on credible, 

direct evidence of a defendant’s specific intent to join in the illegal objective of the alleged 

conspiracy. The Spock test does this. 

In addition to a higher, stricter mens rea standard, strictissimi juris requires a 

similarly heightened standard for the jury’s findings. The First Amendment protection of 

"core political speech" is "at its zenith.” Meyer v. Grant, 486 U.S. 414, 422, 425 (1988) 

(describing "). To provide this protection, Noto informs us that the evidence of an 

individual’s participation in a conspiracy that involves a significant First Amendment 

component must be clear. Noto v. United States, 367 U.S. 290 (1961) (Requiring “clear

proof that a defendant 'specifically intend(s) to accomplish (the aims of the organization) 

by resort to violence.'" Id. at 299.)

In general, “instructions should restate the strictissimi-informed evidentiary rulings

made before and during trial, inform the jury that it must consider the evidence under a 

heightened level of scrutiny, remind them that they cannot impute guilt from the group to 

the individual, and remind them that they play a role not only in determining guilt, but also 

in protecting defendants’ First Amendment rights. Morrison, Strictissimi Juris at 280.

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 13 of 14
Page 14 – DEFENDANTS’ MEMORANDUM RE STRICTISSIMI JURIS 

III. Conclusion

As recognized by the Supreme Court, multiple circuit courts and trial courts, 

strictissimi juris plays an important role in conspiracy trials that implicate the First 

Amendment. The doctrine works to protect the rights of individual defendants to free 

speech, to free association, and to being judged based on their actions and intent alone. 

For these reasons, it must be considered in the case at bar, which so clearly implicates the 

doctrine.

Dated this 29th day of August 2016.

Thomas K. Coan

Thomas K. Coan, OSB 89173

Attorney for Defendant Santilli

Case 3:16-cr-00051-BR Document 1145 Filed 08/29/16 Page 14 of 14