
USCA1 Opinion

	




                            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;                                         -2-                                          2            (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                                         -3-                                          3            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                                         -4-                                          4            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                                         -5-                                          5            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.                                         -6-                                          6                      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                                         -7-                                          7            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                                         -8-                                          8            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                                         -9-                                          9            (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                                         -10-                                          10            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.                                         -11-                                          11            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.                                          -12-                                          12                      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.                                         -13-                                          13            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                                         -14-                                          14            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                                         -15-                                          15            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                                         -16-                                          16            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                                         -17-                                          17            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                                         -18-                                          18            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.                                         -19-                                          19            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                                         -20-                                          20            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                                         -21-                                          21            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                                         -22-                                          22            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                                         -23-                                          23            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.                                         -24-                                          24            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                                         -25-                                          25            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                                         -26-                                          26            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.                                         -27-                                          27                                    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                                         -28-                                          28            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).                                                    -29-                                          29                                  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.                                         -30-                                          30            "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                                         -31-                                          31            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                                         -32-                                          32            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."                                          -33-                                          33            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.                                         -34-                                          34            (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.                                          -35-                                          35            [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.                      ___________                                         -36-                                          36
