United States v. Frankhauser

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1560

UNITED STATES OF AMERICA,

Appellee,

v.

ROY FRANKHAUSER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Joan M. Griffin, with whom Casner & Edwards were on brief for

appellant.
S. Theodore Merritt, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

April 9, 1996

BOWNES, Senior Circuit Judge. Appellant Roy
BOWNES, Senior Circuit Judge.

Frankhauser (Frankhauser) appeals his convictions and

sentence for corruptly persuading a witness to destroy or

conceal objects with intent to impair their availability for

use in an official proceeding, 18 U.S.C. 1512(b)(2)(B)

(Count II), endeavoring to obstruct a grand jury

investigation, 18 U.S.C. 1503 (Count III), and conspiracy

to commit the two substantive offenses, 18 U.S.C. 371

(Count I). As to the convictions, Frankhauser contends that

the district court erred under Fed. R. Evid. 404(b) and/or

Fed. R. Evid. 403 in admitting evidence from his 1987 trial

and conviction for conspiracy to obstruct justice, and that

the evidence was insufficient to support any of the counts of

conviction. As to his sentence, Frankhauser contends that

the district court incorrectly added two points for his role

in the offense. We reverse Frankhauser's conviction under

section 1503, affirm his convictions under sections 1512 and

371, vacate his sentence and remand for further sentencing

proceedings.

I. BACKGROUND

In addition to evidence of Frankhauser's conduct in

this case, evidence of the following was presented: (1)

violations of civil rights laws by Brian Clayton (the

underlying investigation in this case); (2) Frankhauser's

1987 trial and conviction for conspiracy to obstruct justice;

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(3) credit card fraud and other violations of the law by

members of the 1984 Lyndon LaRouche presidential campaign

(the underlying investigation in the 1987 case). Because we

review claims of insufficiency of the evidence, we set forth

the evidence in the light most favorable to the government.

Frankhauser and Brian Clayton

Frankhauser, a self-described political activist,

has been a well-known member of the Ku Klux Klan in

Pennsylvania since at least the 1960s. Up to the time of

trial, he had a local weekly television show, made other

public appearances, and gave interviews to the print media in

which he openly discussed his beliefs. He also ran what he

called the "Legal Defense Fund" out of his home, the purpose

of which was to advise and find attorneys for people who

claimed that their First Amendment rights were being

violated. Frankhauser used his own name in public

appearances, but used names other than his own when acting as

a representative of the Legal Defense Fund.

Brian Clayton (Clayton) was a twenty-year-old

founder of a skinhead organization formed in August of 1993

in Brockton, Massachusetts, called the New Dawn Hammerskins.

According to FBI Agent Finn, skinheads espouse white

supremacy and separate themselves from non-white and Jewish

persons. In February of 1994, Clayton met Frankhauser at the

filming of a Geraldo show in which Frankhauser appeared as a

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representative of the Ku Klux Klan. Clayton appeared in the

audience, identified himself as a skinhead, and spoke about

his white supremacist and separatist views. Three or four

times during March and April of 1994, Clayton called

Frankhauser's "speech line," which played a recorded speech.

On April 14, 1994, Clayton called Frankhauser's personal

line; telephone records introduced at trial reflected an

eight-minute conversation.

The Underlying Investigation: Brian Clayton's Crimes

FBI Agent Finn testified that between August and

October of 1993, in the Brockton/Randolph area, three Jewish

temples were spray-painted with anti-Semitic graffiti

including a swastika, the SS symbol, a fist labeled "White

Power," the phrase "Foreigners Out," and "Ian Stewart," the

name of a deceased singer in an English skinhead band.

During the same period, a "bashing" incident occurred in

which a group of young men in a pick-up truck threw a stick

at and shouted a racial epithet at two young African-American

girls. The FBI, the Massachusetts State Police, and the

Brockton and Randolph police began investigating the

incidents in October of 1993. Early in the investigation, a

state trooper and a Randolph police sergeant interviewed

Clayton at his parents' home where he lived. Clayton showed

them his room containing photographs of Adolph Hitler, a

poster depicting the Holocaust, various pamphlets and flyers

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advocating white supremacy, and an arm band with a swastika

on it. Clayton denied involvement in the incidents under

investigation.

On December 7, 1993, a federal grand jury was

convened to investigate the temple desecrations as violations

of civil rights laws. On January 14, 1994, Agent Finn

visited Brian Clayton's mother, Patricia Clayton (Mrs.

Clayton), at her place of work, told her that her son was a

suspect in an investigation of temple desecrations, and gave

her a subpoena directing Clayton to provide fingerprints and

handwriting exemplars to the grand jury. Mrs. Clayton gave

the subpoena to her son, and he complied with it on January

18, 1994.

The grand jury investigation stopped in March of

1994, but resumed in May of 1994, after another temple was

vandalized on April 30, 1994. At the time of that incident,

Clayton was in Florida with his family for his sister's

wedding. While there, he had a quarrel with his father

during which he said that he would be moving out. On May 7,

a few days after the family returned to Massachusetts,

Clayton left home for Pennsylvania, where he stayed for a

time with Frankhauser and joined the Ku Klux Klan.

Evidence Of Frankhauser's Conduct In This Case

On the morning of Friday, May 13, 1994, Agent Finn

and a Brockton police officer visited the Clayton home

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seeking to question Brian Clayton about the April 30 temple

desecration. Mrs. Clayton informed Agent Finn that her son

had been in Florida on April 30 and that he had since moved

out. Because Agent Finn had been told that Clayton had

supplied baseball bats for "bashing" incidents, he asked Mrs.

Clayton if her son had any bats. Mrs. Clayton replied that

he did, then, at Agent Finn's request, she signed a form

consenting to a search of Brian's bedroom and another room

that also contained his belongings. There, Agent Finn

observed five baseball bats, various fliers and pamphlets

espousing white supremacy, three flags -- a confederate stars

and bars flag, a POW/MIA flag with a white power symbol

affixed to it, and a swastika flag -- on the ceiling, and a

photograph of Adolph Hitler and news clippings about the 1993

temple desecrations and other vandalism and bias incidents on

the walls. According to Agent Finn, some of the symbols and

slogans on the objects in Clayton's rooms were similar to

those spray painted on the temples, and a confederate flag

was reported to have been flying from the truck involved in

the "bashing" incident. Although the consent form Mrs.

Clayton signed said that he could take anything he wished,

Agent Finn did not take anything because he was not confident

that Mrs. Clayton's consent was sufficient to permit a search

of her son's rooms. He did take twenty-nine political fliers

from the living room.

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Later that day, Clayton called his mother at work.

During a brief conversation, she told him that Agent Finn had

been to the house that day. Frankhauser also spoke to Mrs.

Clayton, identifying himself as Ron Miller, an investigator

with the Legal Defense Fund and a counselor who helped young

people. He said he was not a lawyer, but that he would try

to get Brian a lawyer and a polygraph test. Because she was

at work and could not talk any longer on the telephone, Mrs.

Clayton asked them to call her later at home. Mrs. Clayton

did not mention Agent Finn's search during this conversation.

That same day, Frankhauser, having obtained Agent

Finn's telephone number from Mrs. Clayton's husband,

contacted Agent Finn and said that he was Ron Miller of the

Legal Defense Fund, which represented Clayton. Agent Finn

testified that Frankhauser told him where Clayton was, and

that Clayton would not speak to him without counsel but would

surrender himself to Special Agent Reighley at the Allentown,

Pennsylvania, office of the FBI if an arrest warrant were to

issue. Agent Finn did not testify that he told Frankhauser

that he was acting on behalf of a grand jury or that a grand

jury was investigating Clayton.

That night, Frankhauser and Clayton called Mrs.

Clayton at home as she had asked. She testified that

Frankhauser (still calling himself Ron Miller) first told her

not to worry because he had called Agent Finn and told him

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where Brian was and that he would try to get him a lawyer and

a polygraph test. He then advised her that she had a legal

right not to talk to an FBI agent, and asked what questions

Agent Finn had asked. She said that he asked if her son

owned any baseball bats, and that she answered that he did

and then showed the officers Brian's rooms at their request.

Frankhauser said that she should not have done so "without a

search warrant or subpoena." Frankhauser then told her to

"clean out everything that's upstairs in Brian's room, get

rid of everything, because the FBI will be back with a search

warrant." Mrs. Clayton responded that she did not think the

officers would be back, and Frankhauser said: "Do you want to

be responsible for putting your son in jail? If you don't

clean everything out of that room, they'll have all that

evidence against Brian, even though you and I both know he's

innocent, but that won't matter to the FBI because they'll

use all this against him." He then told Mrs. Clayton to pack

"anything that had anything to do with Naziism, skinheadism,

anything like that" in boxes marked "Antiques," advising that

the "FBI will never open it because they'll know it's your

property and they are only interested in Brian's stuff."

When Mrs. Clayton said that she could not lie by hiding the

things in boxes, Frankhauser again asked if she would like to

be responsible for putting her son in jail, and urged her to

"get that room all cleaned out" before the agents returned

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with a search warrant. At some point during this

conversation, either before or after Frankhauser offered his

advice, Brian Clayton took the telephone and told his mother

to throw away all of the news clippings on the walls.

Over the weekend, Mrs. Clayton did not put anything

in boxes, but put all of the items on the walls and the

ceiling -- the news clippings, the flags and the pictures of

Hitler -- in the trash, which was picked up at 6:00 A.M. on

Monday morning. Later on Monday morning, Agent Finn returned

with a search warrant listing the items he had seen that he

considered to be relevant to the investigation. In case Mrs.

Clayton had moved the items, he also brought a subpoena

directing her to appear before the grand jury on May 17 and

to bring with her the same items. Mrs. Clayton told Agent

Finn that she had thrown the things on the walls and ceiling

away. Agent Finn took five baseball bats and two trash bags

full of pamphlets, fliers, newsletters, photographs, arm

bands and other clothing. He did not attempt to retrieve

the items that had been picked up with the trash that

morning.

Mrs. Clayton appeared before the grand jury on

May 17, then agreed to cooperate with the government by

making further telephone calls to Ron Miller and recording

them. During the course of two recorded telephone

conversations that same day, Mrs. Clayton told Frankhauser

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(who identified himself as "McGreen" in one call and "Ron

Miller" in another) that she had been served with a subpoena

and described it to him. Frankhauser's first response was

that Brian should be represented by an attorney "at this

point" and would "not talk to anyone without an attorney, not

even you." He told her to contact the Federal Defender and

explain that she may be the subject of a grand jury

investigation and to follow his advice, that she should tell

the grand jury that she no longer possessed the things other

than the baseball bats but to bring the baseball bats, and

that it would have been illegal to dispose of the items after

a subpoena issued, but she had not violated the law because

no subpoena had issued. He added that he wished she'd thrown

away the baseball bats too, but "that's alright, there's

nothing wrong with baseball bats." In addition, Frankhauser

questioned Mrs. Clayton about whether her son really was with

her in Florida, referring to the April 30 temple desecration

about which Agent Finn had questioned her. When Mrs. Clayton

assured him that he was, Frankhauser replied, "Then you know

he's innocent, don't you."

In July of 1994, the grand jury indicted Brian

Clayton for conspiracy to violate civil rights and conspiracy

to intimidate and interfere with federally protected

activities on account of race, based on the temple

desecrations and "bashing" incidents in the latter part of

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1993. Special Agent Reighley arrested Clayton in

Pennsylvania at his place of work, after getting the address

from Frankhauser. Clayton laterpled guilty tothe indictment.1

The 1987 "LaRouche" Case2

In 1987, Frankhauser was convicted after a jury

trial of one count of conspiracy to commit the offense of

obstruction of justice, 18 U.S.C. 1503, in violation of 18

U.S.C. 371. In the trial of the case now before us, the

government was permitted to introduce the following from the

1987 trial: (1) the indictment; (2) testimony of FBI Special

Agent Egan, the case agent and a witness in the prior trial;

(3) a re-enacted portion of the transcript testimony of

Forrest Fick, a government witness in the prior trial who was

unavailable to testify in the present trial;3 (4) a report

authored by Frankhauser; (5) the jury instructions; and (6) a

certified copy of the judgment of conviction.

The relevant facts underlying the 1987 case were as

follows. Frankhauser, who worked as a security consultant to

the 1984 Lyndon LaRouche presidential campaign and related

1. No evidence of Clayton's guilty plea and resulting
conviction was presented to the jury.

2. The 1987 case was entitled United States v. Frankhauser,

but we refer to it as the "LaRouche" case, as the parties
have throughout trial and in this appeal.

3. Agent Finn read Fick's testimony, with the prosecutor
reading the direct examination questions and defense counsel
reading the cross examination questions.

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organizations, learned that a grand jury was investigating

the organizations and several of their members for defrauding

credit card holders by making unauthorized charges to their

accounts, and that subpoenas had been served on depository

banks for processed credit card slips. Frankhauser then

suggested that the organization destroy records to avoid

their being subpoenaed. A few months later, subpoenas were

served on the LaRouche organizations, and the LaRouchites

destroyed records a few days later. As part of a 39-page

jury instruction, the district court in Frankhauser's 1987

trial instructed the jury that the following, among other

things, constituted obstruction of justice:

(3) destroying documents for which a
grand jury has not yet issued a subpoena
but as to which the person or persons
involved in the destruction know that a
subpoena is likely;

(6) counseling, encouraging or suggesting
the destruction or burning of documents
or records . . . which the person acting
knows are likely to be subpoenaed.4

Frankhauser was found guilty and sentenced to three years'

imprisonment.

II. FEDERAL RULES OF EVIDENCE 404(b) AND 403

4. We express no opinion as to whether these instructions
continue to correctly describe a violation of section 1503
after United States v. Aguilar, U.S. , 115 S. Ct. 2357

(1995), decided after the trial of this case, because
Frankhauser has not raised that particular issue and, in any
event, we find that there was insufficient evidence that
Frankhauser violated or conspired to violate section 1503.

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In denying Frankhauser's motion in limine to

exclude the LaRouche evidence under Fed. R. Evid. 404(b) and

Fed. R. Evid. 403, the court ruled that it was admissible as

"probative of defendant's knowledge of the law concerning

destruction of evidence," and that "its probative value is

not substantially outweighed by the danger of unfair

prejudice." In terms of the issues in the case, it was

admitted for two purposes: (1) to show that Frankhauser

acted with corrupt motive and specific intent to violate the

law, an essential element of each of the charged crimes; and

(2) to refute that Frankhauser had a good faith belief, as he

stated to Mrs. Clayton on May 17, that it was not illegal to

discard objects not yet under subpoena. The court instructed

the jury that it could not consider the evidence as proof

that Frankhauser had a bad character or that he endeavored to

obstruct justice in 1994, but that it could, but need not,

infer from it that Frankhauser "acted knowingly and

intentionally and not because of some mistake, accident or

other innocent reasons."5

We review a trial court's determination that

evidence of prior bad acts is admissible under Rules 404(b)

and 403 of the Federal Rules of Evidence for abuse of

5. The government intimates that the evidence was also
admissible to establish a pattern, but the jury was not so
instructed, so we do not consider that theory of
admissibility.

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discretion. United States v. Guyon, 27 F.3d 723, 729 (1st

Cir. 1994). It is well-established that evidence of prior

bad acts is inadmissible to show bad character and consequent

propensity to commit a crime, but may be admitted to prove,

among other things, knowledge, intent, or absence of mistake

or accident. Fed. R. Evid. 404(b); see also, e.g., United

States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995);

United States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir.

1992). Although logically relevant, "propensity" or "bad

character" evidence carries an unacceptable risk that a jury

will convict for crimes other than those charged, or that it

will convict, although uncertain of guilt, because a bad

person deserves punishment. Arias-Montoya, 967 F.2d at 709;

United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982).

Such evidence therefore is inadmissible as a general rule,

but may be admissible if it has "special" probative value

beyond mere relevance that does not derive from "bad

character" or "propensity." Arias-Montoya, 967 F.2d at 709;

Moccia, 681 F.2d at 63.

This Circuit applies a two-part test to determine

whether a district court abused its discretion in admitting

evidence of prior bad acts. First the evidence must overcome

the "absolute bar" of Fed. R. Evid. 404(b) by being specially

probative of an issue in the case -- such as intent or

knowledge -- without including bad character or propensity as

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a necessary link in the inferential chain. See Aguilar-

Aranceta, 58 F.3d at 798; Arias-Montoya, 967 F.2d at 710;

United States v. Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.

1990). Probative value "must be considered in light of the

remoteness in time of the other act and the degree of

resemblance to the crime charged." United States v. Fields,

871 F.2d 188, 197 (1st Cir.), cert. denied, 493 U.S. 955

(1989). If the proffered evidence has "special relevance,"

it is nonetheless inadmissible if its probative value is

"substantially outweighed by the danger of," inter alia,

"unfair prejudice, confusion of the issues, or misleading the

jury." Fed. R. Evid. 403; Aguilar-Aranceta, 58 F.3d at 798.

"The trial judge . . . must weigh the special relevance

against the prejudicial risk, taking into account the likely

hostile jury reaction that underlies the common law rule."

Moccia, 681 F.2d at 63.

Frankhauser argues, as he did at trial, that the

evidence about his 1987 trial and conviction was not

probative of his knowledge, intent or absence of mistake in

this case because the main focus of the earlier case was the

destruction of documents by others three days after a

subpoena had issued. His conduct -- the pre-subpoena advice

-- was charged as an overt act which may or may not have been

illegal in itself. To convict him of the conspiracy, the

1987 jury need not have found that his advice was illegal as

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long as it found that he joined in a conspiracy to destroy

documents after a subpoena issued. He argues that his

conviction in that case therefore did not inform him that

pre-subpoena advice to destroy evidence or pre-subpoena

destruction of evidence was illegal. Frankhauser points out

that the only mention of pre-subpoena destruction of evidence

in the 1987 trial was in a jury instruction that did not fit

the facts of the case. In addition, Frankhauser argues, his

prior conduct took place ten years before his telephone

conversation with Mrs. Clayton in 1994, and he was tried for

it seven years before that conversation. He argues that the

remoteness in time lessened the probative value of the prior

bad act evidence, Fields, 871 F.2d at 198; United States v.

Lynn, 856 F.2d 430, 435 (1st Cir. 1988), especially because

the relevance of the evidence depended on a "once burned,

twice shy" chain of inferences. See Aguilar-Aranceta, 58

F.3d at 801. Frankhauser argues that, given the remoteness

in time and the dissimilarity between the charges, the

evidence should have been excluded.

For its part, the government argues that the jury

could permissibly infer from Frankhauser's own conduct in the

1984 conspiracy, which was advising the destruction of

records for the express purpose of avoiding a subpoena and

not their actual destruction, the 1987 jury instruction

stating that it is obstruction of justice to counsel

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destruction of documents before a subpoena arrives while

knowing a subpoena is likely, and Frankhauser's conviction,

that he knew that advising someone to dispose of documents

before a subpoena issued for the express purpose of avoiding

a subpoena was illegal, and that he therefore acted corruptly

with the specific intent to violate the law in 1994. That

inferential chain would not include Frankhauser's character

as a necessary link. Ferrer-Cruz, 899 F.2d at 137. The

government also contends that the jury could conclude from

the 1987 instruction stating that it is obstruction of

justice to destroy documents before a subpoena arrives that

Frankhauser did not have a good faith belief, as he stated to

Mrs. Clayton, that the opposite was true. The government

argues that the passage of time would not lessen the

probative value particularly of the instruction regarding

counseling destruction of documents because that instruction

fit Frankhauser's own conduct in the case and his conviction

and sentence for that conduct after a severed trial likely

made a lasting impression on him.

We find that the district court did not abuse its

discretion in finding that the theory under which the 1987

evidence was offered did not run afoul of Fed. R. Evid.

404(b) because the conduct charged in 1987 was very similar

to that charged in 1994, with certain differences that could

be explained to the jury. The remoteness in time did lessen

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the overall probative value of the evidence, but not

appreciably, with one exception -- the jury instruction

stating that it was obstruction of justice to destroy

evidence before a subpoena issued was not very probative to

refute Frankhauser's stated belief that discarding objects

not yet under subpoena was legal, as it was only a small

portion of a lengthy seven-year-old instruction that did not

fit the facts of the case in which it was given.

Our most serious concerns rest on the Rule 403 side

of the scale. "If the evidence brings unwanted baggage, say,

unfair prejudice or a cognizable risk of confusing the jury,

and if the baggage's weight substantially overbalances any

probative value, then the evidence must be excluded."

Aguilar-Aranceta, 58 F.3d at 800 (internal quotation marks

and citations omitted). The author of this opinion believes

that although the LaRouche evidence was probative in theory,

the use and extent of it "progressed well beyond the

necessary," United States v. Pratt, 73 F.3d 450, 452 (1st

Cir. 1996), and that this raised a threat of confusion and

unfair prejudice.6 The other two judges believe that there

6. Once the district court finds that evidence of a prior
bad act is probative, it has an obligation to limit the
evidence to what is legitimately necessary. Evidence of two
obstruction of justice cases was presented in this trial,
each of which was two cases in one. The jury had with it
three different indictments during its deliberations. One
third of the trial transcript and four of nineteen government
exhibits were devoted to the LaRouche case. The case agent
described numerous crimes committed by the LaRouche

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was adequate justification for the admission of at least the

bulk of the evidence. While it behooves us once again to

warn the government and the district court against "the folly

of bad act overkill," Arias-Montoya, 967 F.2d at 714, we all

agree that in this case it is "highly probable" that whatever

portion of the LaRouche evidence that was unnecessarily

admitted "did not contribute to the verdict[s]" on Count I

(conspiracy) and Count II (18 U.S.C. 1512). Aguilar-

Aranceta, 58 F.3d at 802; Arias-Montoya, 967 F.2d at 714; see

also Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).

Even aside from the 404(b) evidence, the evidence supporting

the requisite state of mind with respect to Counts I and II

was strong and uncontradicted, see Parts IV and V, infra, and

organizations and individuals, with which Frankhauser was not
charged. Only enough evidence to explain the context of the
obstruction -- that there was an investigation of credit card
fraud -- was required. In other four-layered obstruction of
justice cases, the evidence of prior obstructive conduct was
not nearly so extensive as that here. See United States v.

Arnold, 773 F.2d 823, 833 (7th Cir. 1985); United States v.

Moree, 897 F.2d 1329, 1333 (5th Cir. 1990). A multitude of

collateral factual issues was relitigated, necessitated by
the extent and detail of the evidence the government was
allowed to present. This created a danger of confusing the
jury, distracting it from the main issues it had to decide,
and misleading it into placing too much importance on the
LaRouche case. See J. Weinstein & M. Berger, 1 Weinstein's

Evidence, 403[04], at 403-59 to 403-67 (1995); United

States v. Glecier, 923 F.2d 496, 503 (7th Cir.), cert.

denied, 502 U.S. 810 (1991); Kinan v. City of Brockton, 876

F.2d 1029, 1034-35 (1st Cir. 1989); United States v.

Pitocchelli, 830 F.2d 401, 403-04 (1st Cir. 1987). The trial

court should have taken care to limit the extent and some of
the content of the LaRouche evidence, especially given the
welter of issues in this case that might have invited a jury
to convict irrationally.

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we reverse the conviction on Count III (18 U.S.C. 1503).

See Part III, infra. We therefore decline to hold that the

admission of the LaRouche evidence was prejudicial error.

III. OBSTRUCTION OF JUSTICE

Frankhauser contends that there was insufficient

evidence that he violated the so-called "omnibus" clause of

18 U.S.C. 1503 under which he was charged and convicted,

which provides in relevant part that it is a crime to

"corruptly . . . endeavor[] to influence, obstruct, or

impede, the due administration of justice." In assessing a

claim of insufficiency of the evidence, we examine the record

in the light most favorable to the verdict, drawing all

reasonable inferences and credibility determinations in its

favor, in an effort to ascertain whether the proof would

allow a rational jury to find every essential element of the

crime charged beyond a reasonable doubt. United States v.

Lanoue, 71 F.3d 966, 982 (1st Cir. 1995); United States v.

Victor, 973 F.2d 975, 977-78 (1st Cir. 1992).

Frankhauser, principally relying on United States

v. Aguilar, U.S. , 115 S. Ct. 2357 (1995), a case

decided by the Supreme Court after his trial, argues that

there was insufficient evidence that his advice to Mrs.

Clayton had the natural and probable effect of interfering

with a pending grand jury investigation, or that he knew or

intended that his advice would interfere with a pending grand

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jury investigation. At most, Frankhauser argues, a rational

jury could conclude that his advice had the natural and

probable effect of interfering with a search by an FBI agent,

and that all he knew or intended was that his advice would

interfere with an FBI search.

We need not reach the question whether, had

Frankhauser known of the grand jury investigation, the advice

he offered to Mrs. Clayton would have been sufficient to

support a conviction under the statute. Aguilar reaffirmed

the proposition that a defendant may be convicted under

section 1503 only when he knew or had notice of a pending

proceeding. Id. at 2362 (citing Pettibone v. United States,

148 U.S. 197, 206 (1893)). After scouring the record in this

case, we are unable to find any evidence that Frankhauser

knew or had notice of the pending grand jury proceeding in

Massachusetts. To be sure, he knew that the FBI was

investigating Brian Clayton, but the government has pointed

to no evidence (and we have found none) that he knew that the

investigation was connected to a grand jury.

The government points to two pieces of evidence to

support the inference that Frankhauser knew about the grand

jury. The first is Mrs. Clayton's testimony that Frankhauser

said he expected that the FBI agent would return, in her

words, "with a subpoena or search warrant, I'm sorry." She

also testified that he said the agent would be back, again in

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her words, "with the subpoena -- I mean the search warrant,

I'm sorry." Even on a cold record it is evident that Mrs.

Clayton's reference to a subpoena was a misstatement, and

that in fact she intended to refer only to a search warrant.

But even if this statement could be read to refer to a

subpoena as well, there is no way to infer from this that

Frankhauser knew that a grand jury proceeding was underway,

rather than a possibility for the future.

Second, the government argues that testimony by

Frankhauser's step-daughter supports the proposition that

Frankhauser knew that Brian Clayton was under investigation

by a federal grand jury. Yet this testimony referred only to

an "investigation," and we see no way the jury could have

inferred that the investigation was by a grand jury rather

than by the FBI. Without stronger evidence of Frankhauser's

knowledge of the pending grand jury proceeding, his

conviction on this count cannot stand. We therefore reverse

his conviction on Count III.

IV. CORRUPTLY PERSUADING A WITNESS

Frankhauser also argues that there was insufficient

evidence from which a rational jury could conclude beyond a

reasonable doubt that he violated 18 U.S.C. 1512(b)(2)(B),

which provides in relevant part that it is a crime to

"knowingly . . . corruptly persuade[] another person . . . or

engage[] in misleading conduct toward another person, with

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intent to . . . cause or induce any person to . . . destroy

. . . or conceal an object with intent to impair the object's

integrity or availability for use in an official proceeding."

Both a federal trial and a federal grand jury investigation

are "official proceedings" within the meaning of the statute.

See 18 U.S.C. 1515(a)(1)(A). In contrast to section 1503,

"an official proceeding need not be pending or about to be

instituted at the time of the offense." 18 U.S.C.

1512(e)(1).

Frankhauser argues that even assuming that his

statements to Mrs. Clayton on May 17 that she had not

violated the law by discarding items not yet under subpoena

were intentionally misleading, there was no evidence that in

making those statements he intended to induce her to destroy

or conceal any evidence in addition to what she already had

put out with the trash. We agree and the government concedes

that there was a lack of evidence that Frankhauser intended

to induce any further action on May 17. The statute,

however, can be violated not only by engaging in misleading

conduct, but also by corruptly persuading a person to destroy

or conceal an object with the specific intent to impair the

object's availability for use in an official proceeding.

As to the "corrupt persuasion" prong of section

1512(b)(2)(B), Frankhauser reiterates that there was

insufficient evidence that his advice to Mrs. Clayton on May

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13 was directed at an official proceeding rather than just an

FBI search. Because an official proceeding need not be

pending or about to be instituted at the time of the corrupt

persuasion, the statute obviously cannot require actual

knowledge of a pending proceeding. On the other hand, the

defendant must act knowingly and with the intent to impair an

object's availability for use in a particular official

proceeding. 18 U.S.C. 1512(b)(2)(B); United States v.

Murphy, 762 F.2d 1151, 1154 (1st Cir. 1985) (section 1512

indictment was defective for failing to identify the

proceeding the defendants allegedlyattempted to influence).

We have not yet had occasion to decide what state

of mind a defendant must have with respect to an official

proceeding in order to violate section 1512 in a case where,

as here, there is insufficient evidence that the defendant

knew that an official proceeding was currently pending. Cf.

Victor, 973 F.2d at 978 (sufficient evidence that defendant

intended to prevent further testimony in a federal proceeding

where, inter alia, defendant told witness that he "talked too

much in the federal court"). In United States v. Shively,

927 F.2d 804 (5th Cir.), cert. denied, 501 U.S. 1209 (1991),

the Fifth Circuit grappled with the issue in a case where the

defendants had committed arson and filed suit in state court

to collect from their insurance company, and then acted in a

threatening way toward a deposition witness and his wife.

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The record was silent as to when the grand jury began

investigating the arson, and whether the witness or his wife

ever testified before the grand jury. Although federal

investigators had become involved in the case before the

defendants' intimidating conduct and there was evidence that

their co-conspirator in the arson knew that federal

investigators were involved, there was no evidence that the

defendants knew it. The Shively court found that there was

insufficient evidence that the defendants acted with intent

to influence an official proceeding rather than the state

civil proceedings, reasoning that "without at least a

circumstantial showing of intent to affect testimony at some

particular federal proceeding that is ongoing or is scheduled

to be commenced in the future, this statute does not

proscribe his conduct." Id. at 812-13. In United States v.

Conneaut Indus., Inc., 852 F. Supp. 116 (D.R.I. 1994), Judge

Pettine acknowledged Shively, but took it a step further to

allow conviction under section 1512(b)(2)(B) in a case where

the defendant's office manager had instructed a secretary to

remove documents after another employee had been fired for

price fixing, but before an official proceeding had commenced

or been scheduled. The office manager's instructions were

"strong circumstantial evidence that she certainly intended

to affect, indeed bury, testimony and gave those instructions

because she realized that a federal proceeding could be

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commenced in the future." Id. at 125. Judge Pettine held

that "the language of the statute . . . encompass[es] an

investigation that the involved individual has reasonable

cause to believe may be about to commence." Id.

We do not adopt the Shively opinion insofar as it

may indicate that a defendant in every case must actually

know that an official proceeding has been commenced or

scheduled. Nor do we adopt the Conneaut opinion insofar as

it might be read as allowing conviction in any case where

there is some circumstantial evidence that the defendant may

have foreseen an official proceeding at some time in the

future. Each case must be evaluated on its own facts.

Here, the evidence that Frankhauser intended to

interfere with an identifiable official proceeding went

beyond that in either Shively or Conneaut. There was no

dispute that on May 13 Frankhauser knew that the FBI was

investigating Brian Clayton. His warnings to Mrs. Clayton

that her son could go to jail unless she followed his

instructions, and his statement to Agent Finn that Clayton

would surrender himself if an arrest warrant were to issue,

were direct evidence that he in fact expected a grand jury

investigation and/or a trial in the foreseeable future, and

that his intent was to make the items unavailable for use in

such a proceeding or proceedings. His prior conviction for

participating in a conspiracy to obstruct justice by advising

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the destruction of documents gave him notice that his advice

to Mrs. Clayton was illegal, thus establishing that he acted

with corrupt intent to violate the law.

Frankhauser further argues that there was

insufficient evidence that he intended Mrs. Clayton to rely

on his advice rather than that he intended that she seek

independent legal counsel before deciding what action to

take. This argument is unavailing for the simple reason that

Mrs. Clayton testified that Frankhauser first encouraged her

to consult with a lawyer on May 17, four days after he gave

his advice and she acted on it.

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V. CONSPIRACY

Frankhauser argues that there was insufficient

evidence from which a rational jury could conclude that he

conspired with Brian Clayton to violate section 1503 or

section 1512, reiterating his arguments that he lacked the

requisite intent to violate either statute, and contending

that the mere fact that they participated together in a

telephone conversation with many lawful objectives, such as

telling Mrs. Clayton that Agent Finn had been informed of her

son's whereabouts, was not enough to show that they conspired

together with the specific intent to interfere with the

administration of justice or to induce Mrs. Clayton to make

evidence unavailable for use in an official proceeding.

In order to prove a conspiracy under section 371,

the government must prove the existence of a conspiracy, the

defendant's knowledge of and voluntary participation in it,

and the commission of an overt act in furtherance of the

agreement. United States v. Yefsky, 994 F.2d 885, 890 (1st

Cir. 1993); United States v. Gomez, 921 F.2d 378, 380 (1st

Cir. 1990). The agreement need not be proved to have been

explicit, and may be proved by circumstantial evidence. See

Direct Sales Co. v. United States, 319 U.S. 703 (1943);

Glasser v. United States, 315 U.S. 60, 80 (1942). To prove

voluntary participation, the government must prove that the

defendant had "an intent to agree and an intent to effectuate

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the commission of the substantive offense." United States v.

Piper, 35 F.3d 611, 615 (1st Cir. 1994).

The evidence of the chain of events on May 13 was

sufficient to establish an agreement to corruptly persuade

Mrs. Clayton to conceal and discard the objects in Clayton's

rooms in order to impair their availability for use in an

official proceeding. Frankhauser and Clayton learned that

Agent Finn was seeking to question Clayton about the April 30

temple desecration and that he had searched Clayton's rooms.

In Clayton's presence, Frankhauser said that he expected

Agent Finn to return with a search warrant, and that Clayton

could go to jail. Frankhauser and Clayton each instructed

Mrs. Clayton to take some action with respect to the objects

in Clayton's rooms -- Frankhauser told her to pack things to

do with Naziism or skinheadism in boxes or "get rid of" them,

and Clayton told her to throw the news clippings away. While

the insufficiency of the evidence that Frankhauser knew about

a pending grand jury investigation would preclude a

conviction for conspiracy to violate section 1503, a rational

jury could find that there was a meeting of the minds with

respect to impairing the availability of the objects in

Clayton's rooms for use in an official proceeding, which both

Frankhauser and Clayton expected, in violation of section

1512(b)(2)(B).

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VI. THE SENTENCE

The district court added 2 levels to Frankhauser's

base offense level pursuant to U.S.S.G. 3B1.1(c) for his

role in the offense, finding that he was a supervisor or

organizer of Clayton.7 Frankhauser appeals the upward role

adjustment. The government bears the burden of proving facts

to justify such an enhancement by a preponderance of the

evidence. United States v. Piedrahita-Santiago, 931 F.2d

127, 132 (1st Cir. 1991). Because the sentencing court's

determination of a defendant's role in an offense is heavily

fact-dependent, it will be set aside only for clear error,

United States v. Shrader, 56 F.3d 288, 293 (1st Cir. 1995),

unless a mistake of law was made, in which case we remand

with appropriate instructions. 18 U.S.C. 3742(f)(1);

United States v. Tejada-Beltran, 50 F.3d 105, 110-11 (1st

Cir. 1995); United States v. Fuller, 897 F.2d 1217, 1220 (1st

Cir. 1990).

The Guidelines provisions pertaining to role

adjustments are as follows: When an offense is committed by

"more than one participant," a role adjustment may, but need

not, apply. U.S.S.G. Ch. 3, pt.B, intro. comment. A

7. Before the two-point addition, the base offense level was
12 according to U.S.S.G. 2J1.2(a). With a Criminal History
Category of III, a total offense level of 14 resulted in a
sentencing range of 21 to 27 months. The court sentenced
Frankhauser to 25 months imprisonment and 36 months of
supervised release on each count, to run concurrently.

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"participant" is a "person who is criminally responsible for

the commission of the offense, but need not have been

convicted." U.S.S.G. 3B1.1, comment.(n.1). The range of

adjustments in section 3B1.1 is based on "the size of a

criminal organization (i.e., the number of participants in

the offense) and the degree to which the defendant was

responsible for committing the offense." U.S.S.G. 3B1.1,

comment. (backg'd.). These adjustments are included

"primarily because of concerns about relative

responsibility." Id. "Many offenses are committed by a

single individual or by individuals of roughly equal

culpability so that none of them will receive an adjustment

under this Part." U.S.S.G. 3B1.4, comment. "If the

defendant was an organizer, leader, manager, or supervisor in

any criminal activity [involving more than one but less than

five participants and was not otherwise extensive], increase

by 2 levels." U.S.S.G. 3B1.1(c). This adjustment "does

not apply to a defendant who merely suggests committing the

offense." U.S.S.G. 3B1.1, comment.(n.4).

Here, the court found that Frankhauser was a

supervisor or organizer of Brian Clayton, the only other

"participant" in the offense of conviction. In order to

qualify under U.S.S.G. 3B1.1(c) as a supervisor or

organizer in criminal activity involving less than five

participants that is not otherwise extensive, the evidence

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must support that the defendant "exercised control over these

persons or was otherwise responsible for organizing them in

the commission of the offense." Fuller, 897 F.2d at 1221;

see also United States v. Webster, 54 F.3d 1, 8 (1st Cir.

1995) (same). The government urges that there need not have

been evidence that Frankhauser exercised control over Clayton

based on our statement in Tejada-Beltran, 50 F.3d 105, that

"retention of control over other participants, although

sometimes relevant to an inquiry into the status of a

putative organizer, is not an essential attribute of

organizer status." Id. at 113. Tejada-Beltran considered

whether direct control over other participants in an

"extensive criminal enterprise" was necessary to establish

organizer status under U.S.S.G. 3B1.1(a), not section

3B1.1(c). We held in that context that the key "is not

direct control but relative responsibility," such as when

"the organizer stages an extensive activity in such a way as

to evince an increased degree of relative responsibility."

Id. at 112. We defined an organizer in that context as one

who "forms diverse elements into a whole consisting of

interdependent, coordinated parts, geared for concerted

action." Id. at 113. See also United States v. Camuti, No.

94-1222, slip op. at 16 (1st Cir. Mar. 12, 1996) (in order to

be found an organizer under 3B1.1(a), not only must "the

fraud be extensive but [defendant must] have played an

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extensive role as an organizer or leader"). We have not

extended Tejada-Beltran to a case in which the criminal

activity was not "otherwise extensive," and decline to do so.

The court did not adopt the recommendation of the

Probation Office against a role adjustment,8 but made

findings in open court, United States v. Catano, 65 F.3d 219,

229 (1st Cir. 1995), that Frankhauser acted in a supervisory

or organizational role. The court relied on the following

factors: (1) Frankhauser's motive ("I think Mr. Frankhauser

believed that Mr. Clayton was innocent, and I think he was

going to take him under his wing. . . . He came to

Pennsylvania and I think Mr. Frankhauser wanted to help him,

he thought he was innocent, and then he engaged in this

scheme with him."); (2) Frankhauser's greater experience in

dealing with the FBI ("He knew better than Mr. Clayton what

you're supposed to do in these circumstances because he had

been through it once before in the Lyndon LaRouche case. . .

. I will take into account not that it's age discrimination,

but one person just had a heck of a lot more experience in

dealing with the FBI than Mr. Clayton who was basically a 20-

8. The Probation Office stated in the Presentence
Investigation Report (PSR) that although "Mrs. Clayton
received the majority of her instructions regarding the
destruction or concealing of evidence from Frankhauser," and
"Brian Clayton's involvement was limited to telling his
mother to throw away all the news clippings . . . the
Probation Office has not been presented with evidence that
Frankhauser directed Clayton to give these instructions to
Mrs. Clayton."

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year-old kid without anything."); (3) the fact that the

advice was not spontaneously given in the first conversation

on May 13 but that several hours passed between that

conversation and the one in which the illegal advice was

given; (4) the fact that Frankhauser got on the phone before

Clayton did; and (5) Clayton's statement to a fellow skinhead

on June 30 that when his mother telephoned after she disposed

of the items, Frankhauser told her "they can't do nothing to

you because you got rid of it before they served the

warrant."

Frankhauser contends that the court improperly

relied on his greater experience as compared with Clayton's

relative youth, and that there was no evidence that he

supervised or organized Clayton in the commission of the

offense during the twenty-minute conversation on the night of

May 13.

While a defendant's having greater experience than

another participant may be a pertinent evidentiary factor

supporting an inference that a defendant played a supervisory

role, relative age and experience, without more, cannot be

the basis for an enhancement under 3B1.1. E.g., United

States v. Wihbey, 75 F.3d 761, 777-78 (1st Cir. 1996). We

recognize, as the government urges, that the adjustments in

section 3B1.1 are available "primarily because of concerns

about relative responsibility," U.S.S.G. 3B1.1, comment.

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(backg'd.), but greater responsibility must be reflected in

the defendant's actions relative to another participant, not

in the mere fact of greater experience. The court must focus

on what the defendant did, in relation to at least one other

participant, in the commission of the offense. Compare

Fuller, 897 F.2d at 1221 (mere fact that defendant dealt with

a large quantity of marijuana did not support a finding that

he was an organizer, leader, supervisor, or manager) with,

e.g., Wihbey, 75 F.3d 761 (defendant gave orders to another,

set timing of drug transaction and received a larger share of

the profit). Without a link to a defendant's conduct, a

defendant's greater experience would not establish that he

acted in a supervisory or organizational role.9 As we have

stated before, "upgrading the BOL must be based on more than

the trial judge's hunch, no matter how sound [her] instincts

or how sagacious [her] judgment." United States v. Ortiz,

966 F.2d 707, 717 (1st Cir. 1992), cert. denied, U.S. ,

113 S. Ct. 1005 (1993).

We are not confident that the court did not rely

too heavily on Frankhauser's greater experience without

sufficiently considering whether he "exercised control over

9. We note that Frankhauser's prior experience in dealing
with a government investigation, gained through the LaRouche
case, was taken into account in two other ways: his
conviction in the LaRouche case contributed to his criminal
history category and the court sentenced him near the higher
end of the range because it was his second similar offense.

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[Clayton] or was otherwise responsible for organizing [him]

in the commission of the offense." Fuller, 897 F.2d at 1221.

That Frankhauser had a motive to protect Clayton in believing

that he was innocent only shows that he and Clayton were "of

roughly equal culpability," U.S.S.G. 3B1.4, comment., where

Clayton had a strong motive of his own and had lied to

Frankhauser about his innocence. Nor do the other

evidentiary factors relied upon by the court appear to have

been "fairly supportive of the two-level increase." Ortiz,

966 F.2d at 717. We therefore vacate the sentence and remand

for further sentencing proceedings so that the court may

reconsider the role adjustment or make factual findings to

support it in light of this opinion.

VII. CONCLUSION

For the foregoing reasons, we reverse Frankhauser's

conviction under 18 U.S.C. 1503, affirm his convictions

under 18 U.S.C. 1512 and 18 U.S.C. 371, vacate his

sentence and remand for further sentencing proceedings.

So ordered.

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