Randy Gean Ellis ("Ellis") appeals his conviction and sentence for receiving and concealing stolen explosives, see 18 U.S.C. § 842(h),1 and knowingly receiving or possessing explosives after being convicted of a felony, see 18 U.S.C. § 842(i)(1).2

In June 1993, employees of Klamath Pacific Corp. discovered certain explosive materials missing from the company's gravel pit in Klamath Falls, Oregon. The materials consisted of nonelectric caps, brown cap boosters, high explosives, connecting wire, lead-in line and ammonium nitrate.

Three months later, Ellis, while in Kern County Jail on other charges, contacted and was then interviewed by the FBI. Ellis explained that he had information regarding the Klamath explosives and that a man named "Joe" had the explosives. Ellis was later re-interviewed and drew a diagram mapping out the location where the materials had been taken.

Rodney Bortis had earlier informed local authorities that Ellis and one Richard Depew came to his apartment in May 1993 and borrowed a copy of The Anarchist Cookbook, a self-described primer for the student of "individual actions of destruction" that contains chapters titled "Drugs," "Electronics, Sabotage, and Surveillance," "Natural, Nonlethal, and Lethal Weapons," and "Explosives." Ellis and Bortis had with them a bag of white crystals they described as containing 100 pounds of ammonium nitrate, and explained that they were looking for a way to turn it into a bomb.

Richard Depew eventually agreed to cooperate with law enforcement officers, and named Ellis as his accomplice in the theft of the explosives. Deputies later searched the home of Ellis's parents and found a spool of lead-in line that was traced to the explosive materials missing from the Klamath gravel pit. In the course of the search, a deputy photographed the tires of a truck parked at the house and noticed the tire tread was similar to the tracks left at Klamath.

At Ellis's jury trial, an immunized Richard Depew testified he had been with Ellis when the explosive materials were stolen and had helped Ellis load them into the back of a truck. Depew recounted how Ellis drove back to his parents' house, leaving the pickup and explosive materials there. Ellis later threatened to kill Depew if he told anyone about the theft.

Ellis was convicted of both receiving and concealing stolen explosives and knowingly receiving or possessing explosives after being convicted of a felony, and was sentenced to 103 months imprisonment. He appeals both his conviction and sentence.3

Rodney Bortis was allowed, over the hearsay objection of Ellis, to testify that when he attempted to obtain explosives from one Terry Grossarth, Grossarth had responded that "the people with the explosives ('Randy [the defendant] and Rich') were in jail."The government concedes that this statement would normally constitute hearsay, but argues that it is nonetheless admissible under United States v. Collicott, 92 F.3d 973 (9th Cir.1996). Fed.R.Evid. 801(d)(1)(B) provides that a witness's statement otherwise constituting hearsay may be admitted if it is "offered to rebut a charge of 'recent fabrication or improper influence or motive.' "4 Collicott, 92 F.3d at 978-79 (quoting Rule 801(d)(1)(B)). Additionally, under the opened door doctrine, we noted in Collicott that "[a]fter a witness has been impeached with prior inconsistent statements, we have admitted the entire conversation or document from which the impeachment statements were drawn if it has significant probative force bearing on credibility ... by placing the inconsistencies in a broader context, demonstrating that the inconsistencies were a minor part of an otherwise consistent account." Id. at 980 (citations and internal quotation marks omitted).

The government maintains that Bortis's statement was admissible because it was in response to defense counsel's attempt to impeach Bortis by implying that he had received lenient treatment in exchange for his cooperation with police, specifically, by agreeing to purchase explosives from Grossarth. This plainly does not meet Fed.R.Evid. 801(d)(1)(B)'s requirement of rebuttal to a charge of recent fabrication. Nor is this statement admissible under Collicott 's opened door doctrine, which allows the admission of an entire prior conversation in order to place another prior inconsistent statement within a broader context. Rather, it was simply a recollection of a related event.

Because the government admits that Bortis's statements were hearsay, and because his statements do not satisfy Collicott or Fed.R.Evid. 801(d)(1)(B) (and the government concedes no other hearsay exception applies), the admission of this statement was error.

Nevertheless, such an error may be considered harmless unless we have "grave doubt whether the erroneously admitted evidence substantially affected the verdict."5 Collicott, 92 F.3d at 984. The potential harm from the admission of the Bortis testimony is that the jury learned that Ellis had been in jail on other charges prior to his indictment on the present charges. But one of the counts in Ellis's indictment charged him with knowingly receiving or possessing explosives after being convicted of a felony. In addition, two federal agents testified that Ellis had been incarcerated in October 1993. Because the error resulted in the admission of evidence that was properly before the jury, the potential that it affected the outcome of the trial was minimal and, standing alone, does not constitute a basis for reversal.

Ellis moved to exclude the government's proposed Exhibit 13, The Anarchist Cookbook ("the Cookbook"), prior to trial.6 After the district court denied Ellis's motion, Ellis again unsuccessfully objected at trial "based on relevance grounds and also under [Fed.R.Evid.] 403," arguing that the book "contains a lot of irrelevant and inflammatory material about such things as drugs, revolutionary politics, sabotage and inflammatory material that just don't go to any issues in the case." The government responded that the book "contains several recipes for explosives and is relevant to the defendant's intent." The district court admitted the Cookbook in its entirety.7

On appeal, Ellis reiterates his argument that the Cookbook was unfairly prejudicial under Fed.R.Evid. 403. We agree.

Although relevant,8 evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Although trial courts have fairly broad discretion under Fed.R.Evid. 403, see United States v. Spencer, 1 F.3d 742, 744 (9th Cir.1993), to admit or exclude relevant evidence, it should be excluded if its probative value is outweighed by unfair prejudice.9 See United States v. Layton, 855 F.2d 1388, 1402 (9th Cir.1988), overruled on other grounds by Guam v. Ignacio, 10 F.3d 608 (9th Cir.1993). "Unfair prejudice" refers to an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one" or "evidence designed to elicit a response from the jurors that is not justified by the evidence." 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 403.04[b] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.1997).

In United States v. Giese, 597 F.2d 1170 (9th Cir.1979), while we ultimately approved of the admission of a potentially prejudicial book (From the Movement toward Revolution ), we emphasized the special circumstances of that case10 and cautioned:

[W]e are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution. In many cases such evidence would be clearly inadmissible.

Id. at 1185.

Similarly, in United States v. McCrea, 583 F.2d 1083, 1086 (9th Cir.1978), we emphasized that prejudicial books and manuals--there the OSS Sabotage and Demolition Manual--are normally inadmissible when they are "entirely unnecessary to support the charge of possession."

That is precisely the case here: Ellis was charged with mere receipt and possession of the stolen explosives. Intent was not an element of the charge; Ellis either knowingly had the explosive devices in his possession or did not. His possession of The Anarchist Cookbook was simply not relevant to the charge he faced:

[When] possession [i]s all the government ha[s] to prove[ ] the defendant's intent [is] immaterial. One cannot logically infer possession of firearms and explosives (as opposed to knowledge of how to use them) from mere possession of books about guns, bombs, and related subjects.

Giese, 597 F.2d at 1187 (emphasis in the original). In McCrea, we also emphasized that "[t]he prosecuting attorney need not have used [the Improvised Munitions Handbook and the OSS Sabotage & Demolition Manual ] as evidence [because these books were] entirely unnecessary to support the charge of possession of the unregistered destructive device." 583 F.2d at 1086.

If the government had prosecuted Ellis under 18 U.S.C. § 844(d),11 then intent would have been an element of the crime and perhaps portions of The Anarchist Cookbook might have been relevant to demonstrate the defendant's intended use of the explosives. However, Ellis was not being prosecuted under 11 U.S.C. § 844(d). Here, any probative value of the The Anarchist Cookbook was substantially outweighed by the danger of unfair prejudice from what the government concedes is a "revolutionary" text, and is therefore likely to elicit a response from jurors that causes them to reach a conclusion based on emotion rather than the evidence presented. See United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985).

C. Destructive Capability of Stolen Explosives

During the testimony of Mark Kelly, a former blaster for Austin Powder Company, Ellis objected to the following questions relating to the destructive capability of the stolen explosives.

Government [Mr. Fitzgerald]: Now, based on the quantities that were taken, can you tell the jury whether or not the explosives had the capability of destroying a car?

Mark Kelly: Absolutely.

Attorney for Ellis [Mr. Weintraub]: Objection, Your Honor.

The Court: Overruled.

Government: What about a residential dwelling?

Kelly: Absolutely.

Ellis: Same objection, Your Honor. Can I have a continuing objection if he's going to continue?

The Court: No. The objection is overruled.

Government: And based on the quantities that were found to be missing, was there the ability to destroy an office building?

Ellis: Same objection, Your Honor.

Kelly: Absolutely.

Ellis: Rule 403, Your Honor.

The Court: Just a moment. I understand your objection, and do you wish to be heard on that, Mr. Fitzgerald?

Government: I do, Your Honor. Perhaps it would be best outside the presence of the jury.

The Court: Well, are you offering it for the purposes of showing intent as argued in your trial brief?

Government: That's correct, Your Honor, as well as to show potential victim impact.

The Court: Mr. Weintraub, do you wish to be heard?

Ellis: Nothing further, Your Honor.

The Court: Thank you. The objection is overruled.

....

Government: Based on the quantities of explosives that you found to be missing from the storage site on July 5, 1993, is it your testimony that that quantity was sufficient to destroy an office building?

Kelly: Absolutely.

Ellis argues that this testimony was inadmissible as unfairly prejudicial under Fed.R.Evid. 403. Ellis argues this is especially so given that the jury could have drawn a connection between the instant case and the highly publicized bombing of a federal office building in Oklahoma City which had occurred shortly before Ellis's trial.

We agree. The district court admitted the testimony after the government stated that it was offered to show intent and potential victim impact. Neither intent nor "potential victim impact" were elements of the charge, nor were they relevant. The admission of these statements was therefore error because they were unfairly prejudicial and had virtually no probative value to the actual charges Ellis faced.

Because we have "grave doubt whether the erroneously admitted evidence substantially affected the verdict," Collicott, 92 F.3d at 984, the admission of the statements regarding the destructive capability of the explosive materials and the admission of the Cookbook constituted error that was not harmless. The government's reliance on this evidence "created a grave danger that the defendant's guilt was established not by evidence relevant to the particular offense being tried, but rather" by evidence that was wholly unrelated to these offenses. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir.1995) (citation and internal quotation marks omitted) (emphasis added).

We reverse Ellis's conviction and sentence and remand for proceedings not inconsistent with this Opinion, including the government electing to re-try Ellis without the erroneous evidence.12

REVERSED and REMANDED.