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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