U.S. v. Frankhauser, 95-1560

• Citation: 80 F.3d 641
• Decision Date: 07 November 1995
• Docket Number: No. 95-1560,95-1560
• Parties: 44 Fed. R. Evid. Serv. 403 UNITED STATES of America, Appellee, v. Roy FRANKHAUSER, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 641

80 F.3d 641

44 Fed. R. Evid. Serv. 403

UNITED STATES of America, Appellee, v. Roy FRANKHAUSER, Defendant, Appellant.

No. 95-1560.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 1995.

Decided April 9, 1996.

Appeal from the United States District Court for the District of Massachusetts; Hon. Patti B. Saris, U.S. District Judge.

Joan M. Griffin, with whom Casner & Edwards, Boston, MA, 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.

BOWNES, Senior Circuit Judge.

Appellant Roy 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; (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 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 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 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.

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 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,...