PUBLISH UNITED STATES COURT OF APPEALS Filed 8/20/96 TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALAN BRUCE KLEIN, Defendant-Appellant. No. 95-8076

_____________________ Appeal from the United States District Court

for the District of Wyoming (D.C. No. 95-CR-10)

_____________________ John R. Green, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Cheyenne, Wyoming, for PlaintiffAppellee. Daniel G. Blythe of Rogers, Blythe & Lewis, Cheyenn e, Wyoming, for Defendant-Appellant.

_____________________ Before BALDOCK, BRORBY and BARRETT , Circuit Judges.

_____________________ BRORBY , Circuit Judge.

_____________________ Following a jury trial, Allen Bruce Klein was convi cted of one count of-2-

conspiracy to possess with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846. The district court denied Mr. Klein's motion for a new trial and sentenced him to 240 months of imprisonment, eight years of supervised release , and fined him $10,000. Mr. Klein challenges his conviction and the $10,000 fin e. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Mr. Klein challenges his conviction on three ground s. First, he contends the incriminating statements he made to police foll owing his arrest should have been suppressed because they were the fruits of an unlawful arrest. Second, Mr. Klein contends the trial court erred in permitting a witness named Dwight David Rogers to make an in-court identification of him. Third, he contends the trial court erred in submitting the indictment to the jury during their deliberations without redacting references to unproven overt acts . Finally, Mr. Klein challenges the $10,000 fine on the ground the tria l court failed to consider his present or future ability to pay.

A. Suppression of Incriminating Statements After his arrest and advisement of his rights under Miranda v. Arizona , 384 U.S. 436 (1966), Mr. Klein admitted he was a suppli er of large amounts of-3-

methamphetamine, including over a pound of methamph etamine that was shipped to Wyoming. Mr. Klein moved to have these incrimin ating statements suppressed, and the district court denied his motio n. Mr. Klein contends the statements should have been suppressed because he w as arrested without probable

cause.

The events leading to Mr. Klein's arrest began when Wyoming authorities arrested Dwight David Rogers for his role in shippi ng a package of methamphetamine from Phoenix, Arizona, to Reliance, Wyoming. After his arrest, Mr. Rogers made statements detailing the transactio n and those involved. He discussed the role of his supplier in Phoenix, a ma n whom he knew only as "Bruce." Mr. Rogers described Bruce as being appro ximately five-ten to six feet tall with gray-brown hair and of Basque nationality . He explained how he drove to Phoenix, contacted Bruce, and purchased over a p ound of methamphetamine from Bruce at a home in Chandler, Arizona, a suburb of Phoenix. Based on information provided by Mr. Rogers, the Wyoming aut horities flew to Arizona to investigate and verify Mr. Rogers' story. After ar riving in Arizona, the officers contacted Mr. Rogers back in Wyoming and had him gi ve them directions to the house where he had bought the methamphetamine from Bruce. The directions led to 372 North Hartford, Chandler, Arizona, where the officers observed a blue-4-

Pontiac Sunbird Mr. Rogers had described as the carused by Bruce. The listed owner of the house and the car was Richard West. Upon being shown a photograph of Richard West, Mr. Rogers said the per son was definitely not Bruce. The Wyoming authorities surveilled the house in Cha ndler. At one point, the officers observed a man in the Sunbird who fit the description Mr. Rogers had given for Bruce. The officers followed the man to a department store and obtained a backside photograph of him as he entered the store. They sent this photograph, along with ones of the house and the Su nbird, to Wyoming for Mr. Rogers' identification. Mr. Rogers identified the car as the one he had seen Bruce in and identified the house as the one in which he had purchased methamphetamine from Bruce. Mr. Rogers thought the photograph of the man looked like Bruce, but could not be sure because of the distance from which it was taken. The Wyoming officers learned from Arizo na authorities that they had information that a man named Bruce lived at 372 North Hartford in Chandler and was selling large quantities of methamphetamine. T he Wyoming officers could not, however, locate or identify this Bruce.

In an effort to learn more about Bruce and the meth amphetamine connection between Arizona and Wyoming, the Wyoming officers eventually obtained a search warrant for the house in Chandlerfrom a federal magistrate in-5-

Phoenix. The officers executed the warrant with he lp from Arizona officials. During the search, the officers encountered two wom en, Elizabeth Clark and Laura Beikler. Ms. Clark, who was in the house whe n officers began the search, confirmed that a man name Bruce lived at the house and was involved in trafficking methamphetamine. Ms. Beikler arrived at the house in the course of the search and was driving the blue Sunbird associated with Bruce. She confirmed that Bruce was a big trafficker of methamphetamine. She also explained that she had switched cars with Bruce and that he was en route to California in her car to pick up more methamphetami ne. During the officers' interview of Ms. Beikler, a man called the house, i dentified himself as Bruce, and asked to speak with Ms. Beikler. Bruce told Ms. Be ikler she had forgotten to leave her registration in her car and specified a c onvenience store at which she was to meet him with the registration. The officer s got a description from Ms. Beikler of what Bruce looked like, what he was wear ing, and what her car looked like. They relayed this information to a SWAT team , which left to look for the car and Bruce. At this point, the officers still d id not know Bruce's last name. Upon arriving at the specified convenience store, t he SWAT team identified Ms. Beikler's car. Though the car contained only a wom an, officers observed a man in the store who matched the description given by Ms. Beikler. The officers arrested the man and took him to the house at 372 North Hart ford, where the other officers1 We note that "in absence of an applicable federal statute the law of the

state where an arrest without warrant takes place d etermines its validity even for federal crimes." Swingler , 758 F.2d at 487 (internal quotation marks and cit ation omitted). Assuming this rule applies in this case, the relevant substantive law would not change. Arizona permits warrantless arre sts for felonies under the same standards as those established by the Supreme Court. See Ariz. Rev. Stat. Ann. § 13-3883; Arizona v. Romero , 870 P.2d 1141, 1146-47 (Ariz. Ct. App. 1994).

-6- were still searching the residence. After being ad vised of his rights, the man identified himself as Bruce Klein and admitted to s elling Mr. Rogers over a pound of methamphetamine.

A warrantless arrest for a felony normally is permi ssible as long as the arresting officer has probable cause. United States v. Watson , 423 U.S. 411, 414- 23 (1976). The proper probable cause inquiry asks whether at the time of the arrest "the facts and circumstances within [the off icers'] knowledge and of which they had reasonably trustworthy information were su fficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense." Beck v. Ohio , 379 U.S. 89, 91 (1964). "'[P]robable cause can r est upon the collective knowledge of the police, rather than sol ely on that of the officer who actually makes the arrest.'" United States v. Swingler , 758 F.2d 477, 487 (10th Cir. 1985) (quoting United States v. McManus , 560 F.2d 747, 750 (6th Cir. 1977)). 1-7-

After a careful review of the record, we conclude p robable cause supported Mr. Klein's arrest. From Mr. Rogers, the officers knew that a man named Bruce sold methamphetamine out of a home located at 372 N orth Hartford in Chandler, Arizona. They also knew he drove a blue Pontiac Su nbird. Upon executing a search warrant at 372 North Hartford, the officers were told by Ms. Clark that a man named Bruce lived at the house and trafficked i n methamphetamine. Ms. Beikler corroborated Ms. Clark's appraisal of Bruce 's methamphetamine trafficking and further informed the officers that Bruce could be found at a specified convenience store. She explained she was driving his blue Pontiac Sunbird because he was taking her car to Californiato pick up more methamphetamine. She gave them his description and told them what he was wearing. Upon arriving at the store, officers saw Mr. Klein and observed he matched the description of Bruce given by Ms. Beikl er. Given these circumstances, we believe the officers had probable cause to believe Mr. Klein was the Bruce described to them by Mr. Rogers, Ms. Clark and Ms. Beikler as a methamphetamine trafficker. That the officers did not know Mr. Klein's actual identity until after they arrested him is of no mom ent. The arrest was lawful and the district court properly denied Mr. Klein's moti on to suppress.2The government's alleged inadvertent identificati on of Mr. Klein for Mr.

Rogers arose during trial. With the jury dismissed and Mr. Rogers on the stand, the attorneys and the court were discussing the adm issibility of a hearsay statement. Mr. Rogers was in the process of testif ying about a telephone conversation he had had with the as yet unidentifie d "Bruce" whom he eventually identified as Mr. Klein. The government offered th e following argument:

MR. GREEN: Judge, what I would submit is that we w ill connect up the voice to a person that's involved in this case, and that person ultimately will be the defendant, Bruce Klei n, and that in the context of this statement, it's a statement made by a coconspirator.

-8- B. In-Court Identification Mr. Klein contends the trial court erred by permitt ing Mr. Rogers to make an in-court identification of him. Mr. Klein argue s the court should not have permitted Mr. Rogers to make the in-court identific ation on the grounds that a pre-trial photographic lineup was impermissibly sug gestive and because the prosecution inadvertently identified Mr. Klein for Mr. Rogers during trial. 2 After a hearing in which it heard testimony concerning th e pre-trial photographic lineup, the district court ruled that even though t he pre-trial photographic identification was unnecessarily suggestive and sho uld be suppressed, the in-court identification was nevertheless permissible. With respect to Mr. Klein's complaint with the prosecution's alleged identification of Mr. Klein for Mr. Rogers during trial, the district court found this was "a problem that [was] greatly diluted by the earlier suggestive [photographic] li neup."-9-

As the Supreme Court has decreed, "[r]eliability is the linchpin in determining the admissibility of identification tes timony." Manson v. Braithwaite , 432 U.S. 98, 114 (1977). Accordingly, we inquire whether Mr. Rogers' in-court identification of Mr. Klein was su fficiently reliable such that it did not create "a very substantial likelihood of ir reparable misidentification." Simmons v. United States , 390 U.S. 377, 384 (1968).

First, and most importantly, Mr. Rogers met persona lly with Mr. Klein three times in two days. The first meeting, in whi ch Mr. Rogers and Mr. Klein negotiated toward a methamphetamine transaction, la sted approximately twenty to thirty minutes. The second meeting, in which Mr. R ogers and Mr. Klein conducted the transaction, lasted approximately ten minutes. During the third meeting, which lasted thirty to forty-five minutes, Mr. Rogers negotiated with Mr. Klein for more methamphetamine. With respect to th e first meeting, Mr. Rogers was able to offer a detailed description of the mee ting, its circumstances, and location. With respect to Mr. Klein's physical app earance, Mr. Rogers described him as approximately six feet tall, 155 pounds, wit h grayish-brown hair, and of Basque origin. Though Mr. Rogers overestimated Mr. Klein's height, there is no indication his physical description was otherwise i naccurate. In our view, these facts indicate Mr. Rogers' in-court identification of Mr. Klein was sufficiently-10-

reliable to overcome the risk of misidentification created by the suggestive photographic lineup and the government's alleged in advertent identification of Mr. Klein to Mr. Rogers in court. The identificati on, therefore, did not violate Mr. Klein's due process rights.

C. Submission of Unredacted Indictment to Jury Mr. Klein contends the district court erred by subm itting the indictment to the jury without redacting references to overt acts not in evidence. The indictment, in part, read: "On or about December 7 , 1994, KLEIN possessed with the intent to distribute approximately two ounces o f methamphetamine, approximately $19,000.00 in cash, and a loaded Fire star .45 caliber semiautomatic handgun, serial number 2068522, in Chandl er, Arizona." As the government concedes, it presented at trial no evide nce as to the gun and evidence as to only part of the alleged $19,000. After the court received the jury's guilty verdict of conspiracy with respect to Mr. Klein and the jury had been dismissed, one of the jurors apparently informed Mr. Klein's c ounsel that she had not wanted to convict his client but that the .45 handgun and the $19,000 in cash mentioned in the indictment made the difference. After learn ing this, Mr. Klein's counsel returned to the courtroom and moved for a mistrial, explaining to the judge and the government what he had just learned. Concludin g any error was harmless, the-11-

district court denied the motion.

Mr. Klein then filed a motion for a new trial pursu ant to Fed. R. Crim. P. 33. The district court held a hearing on the motio n. Mr. Klein argued the unredacted references in the indictment were extran eous prejudicial information erroneously submitted to the jury. Mr. Klein then urged the court to examine the jurors pursuant to Fed. R. Evid. 606(b) to determin e to what extent they considered this extrinsic evidence in reaching thei r verdict. The district court first found that the unredacted indictment was subm itted to the jury. Concluding that Fed. R. Evid. 606(b) prohibited the court from making an inquiry into the actual effect the unredacted references might have had on the jury's deliberative process, the district court determined the submissi on of the unredacted indictment was harmless error. The court then denied the moti on for a new trial. Mr. Klein contends the district court erred and that he is en titled to a new trial.

We begin our discussion of this issue with the juro r's explanation to Mr. Klein's counsel that the references in the indictme nt to the handgun and the money helped her conclude Mr. Klein was guilty. We have no first-hand knowledge of this juror's reasoning. The juror's s tatements came into the record through the statements of Mr. Klein's attorney. Mr . Klein places great emphasis-12-

on the juror's explanation of her guilty vote. Acc ording to Mr. Klein, since we know the indictment tainted the juror's deliberativ e process, we must grant him a new trial.

Unfortunately for Mr. Klein, we are prohibited from considering the actual effect the unredacted indictment may have had on th e juror's thought processes. "While a juror 'may testify on the question whetherextraneous prejudicial information was improperly brought to the jury's attention,' a juror 'may not testify as to ... the effect of anything ... concer ning the juror's mental processes in connection therewith.'" United States v. Davis , 60 F.3d 1479, 1482 (10th Cir. 1995) (quoting Fed. R. Evid. 606(b)), cert. denied, 116 S. Ct. 1829 (1996). If the juror herself would be prohibited from explaining t o the court the effect of the indictment on her decision to vote guilty, then cle arly we may not consider the same just because it comes to us through the unsworn statement of Mr. Klein's attorney. It is not that we doubt the honesty of M r. Klein's attorney, but that Rule 606(b) limits us to an objective evaluation of the effect the unredacted indictment had on the jury's verdict. United States v. Hornung , 848 F.2d 1040, 1045 (10th Cir. 1988), cert. denied, 489 U.S. 1069 (1989); see Mayhue v. St. Francis Hosp. of Wichita, Inc. , 969 F.2d 919, 923-24 (10th Cir. 1992).-13-

It rests within the district court's discretion to submit the indictment to the jury. United States v. Skolek, 474 F.2d 582, 586 (10th Cir. 1973). When the court, however, fails to redact references to preju dicial facts that are not in evidence, we believe the court may err by improperl y placing before the jury extrinsic material the jury should not consider. O f course, the trial court's failure to redact surplusage from an indictment will not al ways amount to error. See United States v. Crossland, 642 F.2d 1113, 1115 (10th Cir. 1981) (not an abus e of discretion to submit indictment to jury without red acting testifying coconspirator's name). But when the unredacted information relates to prejudicial unproven facts such as that an alleged drug conspirator also posse ssed a handgun and large amounts of cash, we believe the risk of biasing the jury is great enough to require redaction. See United States v. England, 966 F.2d 403, 408 (8th Cir.), cert. denied, 506 U.S. 1025 (1992); United States v. Williams , 809 F.2d 75, 81 (1st Cir. 1986) (district court erred by failing to redact fr om indictment unproven claim that alleged drug conspirator possessed a sawed-off shotgun), cert. denied, 481 U.S. 1030 (1987). Mr. Klein contends failure to re dact such potentially prejudicial information from an indictment is an er ror of constitutional dimension. Courts appear to go both ways on this issue. Compare, e.g. , Williams , 808 F.2d at 80 (failure to redact unproven overt acts from cons piracy indictment is error of constitutional dimension) with England, 966 F.2d at 408-09 (finding error where-14-

trial court failed to redact from indictment unprov en allegations but not applying harmless error standard required by Chapman v. California , 386 U.S. 18 (1967)). To support his contention the district court committed constitutional error, Mr. Klein argues this case is analogous to situations w here a jury is exposed to information, like a newspaper article or communicat ion by a third party, that is completely extraneous to the trial. See, e.g., Mayhue , 969 F.2d at 921-22 (jury consulted dictionary during its deliberations); United States v. Thompson , 908 F.2d 648, 649-50 (10th Cir. 1990) (some juror's mayhave read newspaper article containing prejudicial information excluded at tria l); Hornung , 848 F.2d at 1043- 44 (juror received information about the defendant from a third party).

Because it does not alter our conclusion that the d istrict court's error was harmless, we assume, without deciding, that Mr. Kle in is correct that the district court's failure to redact the challenged allegation s from the indictment was an error of constitutional dimension. In such cases, the error is presumed to be prejudicial and the government is required to demon strate the error was harmless.
Davis , 60 F.3d at 1484-85; Thompson , 908 F.2d at 652-53; see Chapman , 386 U.S. at 24. As the Eighth Circuit has explained, [b]ecause Rule 606(b) precludes the district court from investigating the subjective effects of any extrinsic material on the jurors, whether such effects might be shown to affirm or negate the conclusion of actual prejudice, a presumption of prejudice is cre ated and the burden-15-

is on the government to prove harmlessness. United States v. Bassler , 651 F.2d 600, 603 (8th Cir.), cert. denied, 454 U.S. 944 (1981); see Remmer v. United States , 347 U.S. 227, 229 (1954) (establishing presumption of prejudice when juror is contacted bythird party about the case). "[A]s a general rule ... an error is harmless if th e [government] can prove beyond a reasonable doubt that it did not contribute to th e verdict." Thompson , 908 F.2d at 653 (citing Chapman , 386 U.S. at 24). Whether the error contributed t o the verdict is, of course, evaluated objectively. Hornung , 848 F.2d at 1045.

After objectively "reviewing the entire record, ana lyzing the substance of the [unredacted information], and comparing it to t hat information of which the jurors were properly aware," Hornung , 848 F.2d at 1045 (internal quotation marks and citation omitted), we are convinced beyond a re asonable doubt that the failure to redact the challenged information was harmless e rror. We begin with the district court's repeated admonitions to the jury t hat the indictment was not evidence. During jury selection the district courtexplained:

I'm about to read a portion of the indictment that has been filed in this case, and I want to caution you that it is not evidence of any wrongdoing. It is a charge. It is notice of the c laims that are being asserted by the government .... So you must not co nsider it as evidence .... The court gave a similar admonition during selectio n of alternate jurors, and right-16-

before opening arguments again instructed the jury: "The indictment against the defendants brought by the Government is only an acc usation, nothing more. It is not proof of guilt or anything else." Finally, at the close of trial the district court instructed the jury, "An Indictment is but a formal method of accusing a defendant of a crime. It is not evidence of any ki nd against the accused." The court read this instruction to the jury and submitt ed it to them in writing to consult during their deliberations. In our view, a nd that of other courts that have examined the problem, a proper covering instruction with respect to the indictment goes a long way toward curing any potent ial for prejudice created by giving the indictment to the jury. See United States v. Utz , 886 F.2d 1148, 1151 (9th Cir. 1989) (submission of unredacted indictment to jury would be harmless beyond a reasonable doubt if judge properly instruc ted jury that indictment is not evidence), cert. denied, 497 U.S. 1005 (1990); Williams , 809 F.2d at 80 n. 3; United States v. Medina , 761 F.2d 12, 21-22 (1st Cir. 1985); see also England, 966 F.2d at 408.

Next, we note the district court properly instructe d the jury that to establish guilt under 21 U.S.C. § 846 the government need notprove any alleged member of the conspiracy performed any particular overt ac t in furtherance of the conspiracy. United States v. Savaiano , 843 F.2d 1280, 1294 (10th Cir.), cert.-17-

denied, 488 U.S. 836 (1988). The unproven allegations th at Mr. Klein possessed a handgun and large amounts of cash were alleged ov ert acts. That the government did not need to prove Mr. Klein engaged in any overt acts diminishes any potential for harm created by the jury learning of unproven overt acts. See England, 966 F.2d at 408.

Finally, we note that overwhelming evidence of Mr. Klein's guilt supported the jury's verdict. After he was arrested and advi sed of his rights, Mr. Klein agreed to talk with police officers. When told he was going to be charged with conspiracy to distribute two pounds of methamphetam ine to Wyoming, Mr. Klein responded, "How could it be two pounds when all the y got from me was a pound and a quarter?" Mr. Klein then bragged his distrib ution of two or three pounds of methamphetamine to Wyoming was "nothing" because he distributed forty pounds per week in the Phoenix area. The jury heard these incriminating statements by Mr. Klein through the testimony of one of the Drug Enforcement Agents who interviewed Mr. Klein. Also, as already noted, Mr. Rogers identified Mr. Klein to the jury as the man whom he met three times and fro m whom he purchased one and a quarter pounds of methamphetamine. In our vi ew, Mr. Klein's confession to police officers, as corroborated by Mr. Rogers, pro vided overwhelming evidence of his guilt. As is well-recognized, "the most com mon means of demonstrating-18-

the harmlessness of an extraneous contact is to sho w the existence of 'overwhelming evidence of [the] defendant's guilt.' " Davis , 60 F.3d at 1485 (quoting Hornung , 848 F.2d at 1045); see Williams , 809 F.2d at 81-82 (applying overwhelming evidence test when court submitted ind ictment to jury without redacting references to unproven overt acts); United States v. Parker , 586 F.2d 1253, 1258 (8th Cir. 1978) (same); United States v. Marx , 485 F.2d 1179, 1184 (10th Cir. 1973) (jury's viewing of unadmitted exhi bits was harmless because there was overwhelming evidence of defendant's guil t), cert. denied, 416 U.S. 986 (1974).

We believe the reasons given above provide us more than enough justification to conclude the government met its bu rden of proving the district court committed harmless error when it submitted th e unredacted indictment to the jury.

D. The $10,000 Fine Mr. Klein disputes the district court's decision to include a $10,000 fine as part of his sentence. We review the imposition of a fine under the sentencing guidelines for an abuse of discretion. United States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1993), cert. denied, 114 S. Ct. 1403 (1994). The sentencing guideline s-19-

require the court to "impose a fine in all cases, e xcept where the defendant establishes that he is unable to pay and is not lik ely to become able to pay any fine." U.S.S.G. §5E1.2(a). With a total offense l evel of 34, the fine range for Mr. Klein's conviction was $17,500 to $8,000,000 pu rsuant to U.S.S.G. §5E1.2(c)(3) & (4) and 21 U.S.C. § 841(b)(1)(A). A fter reviewing the evidence before him, the district court exercised its discre tion in imposing a fine significantly lower than the guideline minimum. U. S.S.G. §5E1.2, comment. (n. 3).

Mr. Klein contends the district court erred by fail ing to consider his present or future ability to pay. After carefully reviewin g the record we find this contention to be without merit. Mr. Klein bore the burden of proving his inability to pay a fine. United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir.), cert. denied, 114 S. Ct. 2762 (1994). During preparation of hi s presentence report and at the sentencing hearing, Mr. Klein failed to prod uce any evidence of his inability to pay a fine. Instead he asked the court to delay its decision so it could review an affidavit showing his indigence, which af fidavit he was preparing to support his request for the appointment of an attor ney under the Criminal Justice Act. Mr. Klein stated this affidavit would supporthis claim that he is without assets. The district court declined to wait for th e submission of this affidavit and-20-

found: I would note there is an employment record showing that the defendant has been employed as a service manager of an auto repair business earning 200 to $250 per week, has been sel f-employed buying and selling Harley Davidson motorcycles, has worked in the photography business for Mr. Logan, a movie set des ign and odd jobs, and has also owned a construction company in the early 1980s in Florida. At this point the Court is able to find from the pr esentence report that the defendant has an earning capacity, that is, ability to maintain employment, to be involved in gainful empl oyment, earning upwards to 250 per week. There is no evidence of financial resources that ha s been demonstrated. There is no evidence of financial de pendency upon the defendant that would indicate that he is respon sible for the welfare of other persons who are financially depend ent upon him. Any fine ordered by this Court would result in a pe cuniary loss inflicted upon the defendant rather than others. C ertainly there is a policy to deprive the defendant of illegally obtain ed gains from the offense and here there is no restitution issue for the Court to be concerned with. There are no assets from which a fine may be collec ted that the Court has any awareness. So a fine appears to be p ayable from the earnings of the defendant, if any, that he may accu mulate from time to time.
In its findings, the district court clearly accepts Mr. Klein's claims that he possesses no assets and instead relies on his earni ng potential in assessing the fine. After the sentencing hearing, Mr. Klein subm itted a motion to relieve his obligation to pay the fine and attached the above r eferenced affidavit. The district court denied this motion and again acknowl edged Mr. Klein's lack of-21-

assets, employment history and earning capacity.

Mr. Klein's indigence at the time of sentencing did not preclude imposition of a fine. United States v. Sneed, 34 F.3d 1570, 1586 (10th Cir. 1994) (finding no plain error where court based fine on defendant's e arning capacity); United States
v. Favorito , 5 F.3d 1338, 1339 (9th Cir. 1993), cert.denied, 114 S. Ct. 1374 (1994); United States v. Hagmann , 950 F.2d 175, 185-86 (5th Cir. 1991), cert. denied, 506 U.S. 835 (1992); United States v. Mastropierro , 931 F.2d 905, 907 (D.C. Cir. 1991). Mr. Klein has failed to submit a ny evidence establishing his inability to find future employment or any evidence indicating current or future financial liabilities which would prevent him from using his future earnings to pay the fine. He simply rests on his current lack of assets. This reliance on his current insolvency is not enough to meet his burden of proving his inability to pay the fine sometime in the future. In light of the e vidence submitted to the district court and the small size of the fine compared to th e range permitted by the sentencing guidelines, we find the district court d id not abuse its discretion in imposing a $10,000 fine against Mr. Klein.

For the reasons given above, the decisions of the d istrict court challenged by Mr. Klein are AFFIRMED

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