* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 24 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LISA DENNY DEMEREE, Defendant - Appellant. No. 97-5211 (D.C. No. 96-CR-151-H) (Northern District of Oklahoma)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERRY L. GREEN also known as Butch,Defendant - Appellant. No. 97-5212 (D.C. No. 96-CR-151-H) (Northern District of Oklahoma)

ORDER & JUDGMENT *

Before KELLY , HOLLOWAY and LUCERO , Circuit Judges.
Appellants Lisa Denny Demeree and Jerry L. Green we re tried and convicted of violating federal narcotics laws. The y now challenge their1 Green’s and Demeree’s convictions for conspiracy to possess and distribute

methamphetamine in violation of 21 U.S.C. § 846 were vacated at the request of the government. In addition, Demeree was found not guilty of witness intimidation.

2The jury had found Demeree’s property forfeitable pursuant to the criminal forfeiture provisions of 21 U.S.C. §§ 848 and 853. - 2 - convictions and sentences on numerous grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I In a joint trial, Green and Demeree were convicted of operating a continuing criminal enterprise in violation of 21 U .S.C. § 848(a), (c), and (d). 1
The district court sentenced Green to life without parole and Demeree to a life sentence. In addition, the court ordered a forfeit ure of Demeree’s property, 2 and assessed a fine of $50,000 against her.
II Appellants argue that there was insufficient eviden ce to support their convictions for operating a continuing criminal ent erprise in violation of 21 U.S.C. § 848. In deciding a sufficiency of the evi dence claim, “we review the record only to determine whether both the direct an d circumstantial evidence, together with the reasonable inferences [therefrom] , when viewed in the light most favorable to the government, would permit a re asonable jury to find the defendant guilty beyond a reasonable doubt.” Unite d States v. Guadalupe , 979 F.2d 790, 793 (10th Cir. 1992). Specifically, appe llants argue that the- 3 -

prosecution failed to prove that they held a superv isory, managerial, or organizational role in, and received substantial in come from, the alleged criminal enterprise. See 21 U.S.C. § 848(c). For purposes of § 848, we construe the terms “organ izer,” “manager” and “supervisor” according to their “everyday meanings. ” United States v. Jenkins , 904 F.2d 549, 553 (10th Cir. 1990). An organizer f acilitates the orderly operation of people engaged in separate activities, see United States v. Smith , 24 F.3d 1230, 1233 (10th Cir. 1994), a supervisor orders others t o carry out her directions, see United States v. Apodaca , 843 F.2d 421, 425 (10th Cir. 1988), and a manager exercises some managerial responsibility with respe ct to five or more persons.
See Jenkins , 904 F.2d at 553. The record is sufficient to est ablish that appellants played key roles in organizing and managing a methamphetamine distribution network. The record also shows that appellants notonly derived substantial income from their drug trafficking scheme, they col lected the funds generated by their criminal enterprise and controlled the mannerof payments. Reviewing the evidence in the light most favorable to the governm ent, we conclude a rational jury could have found that appellants operated a co ntinuing criminal enterprise in violation of 21 U.S.C. § 848.- 4 - III Demeree challenges the district court’s enhancement s of her offense level. She also asserts a speedy trial violation, and argu es that the district court erred when it assessed a fine as part of her sentence andordered forfeiture of her property. A Demeree argues that the district court erroneously enhanced her offense level for obstruction of justice and possession of a firearm. We review a district court’s legal interpretations of the Sentencing Gui delines de novo, see United States v. Sanders , 990 F.2d 582, 583 (10th Cir. 1993), and its under lying factual findings for clear error, see United States v. Sullivan , 967 F.2d 370, 376 (10th Cir. 1992). Section 3C1.1 of the Sentencing Guidelines provides for a two-point increase in the base offense level if a defendant attempts to obstruct or impede the investigation or prosecution of a criminal offense by “threatening, intimidating, or otherwise unlawfully influencing . . . a witness.” U.S.S.G. § 3C.1.1, comment. (n.4(a)). It is undisputed that while being prepar ed for transportation from the county jail to the United States District Court, De meree spat on Robert Smith, a government witness. Shortly thereafter, appellant Green and another federal prisoner called Smith a “snitch.” Under the circum stances, the district court- 5 -

correctly found that Demeree sought to obstruct jus tice by threatening or intimidating witness Smith. See United States v. Ferrugia , 604 F. Supp. 668, 674- 75 (E.D.N.Y.), aff’d , 779 F.2d 36 (2d Cir. 1985) (stating that spitting in face of witness was sufficient basis for obstruction of jus tice charge). We also uphold the district court’s enhancement of Demeree’s offense level for possession of a firearm. Section 2D1.1(b)(1) o f the Guidelines provides for a two-level enhancement “[i]f a dangerous weapon (in cluding a firearm) was possessed” in the commission of a drug offense. To support the applicability of § 2D1.1(b)(1), the government only has to show by a p reponderance of the evidence that, given the totality of the circumstances, it i s not “clearly improbable” that a firearm was connected to the offense. U.S.S.G. § 2 D1.1, comment. (n.3); United States v. Goddard , 929 F.2d 546, 549 (10th Cir. 1991). According to trial testimony, Demeree often carrieda gun during the life of the drug distribution conspiracy. Demeree argues, however, that to secure enhancement for possession of a firearm, the govern ment must prove the weapon was found in the same location where the drugs or d rug paraphernalia were stored or where part of the transaction occurred. Even if we accept this argument, we agree with the district court that the government m et its burden by proving that appellant often carried a gun on her frequent visit s to Tulsa, a major distribution center for appellant’s drug distribution scheme. T here was also evidence in the3 Demeree notes that she has no cause of action under the Speedy Trial Act. Her

speedy trial claim is based only on the Sixth Amendment. - 6 - probation report that Demeree had carried a gun forseveral years during the life of the conspiracy when she traveled from Southern C alifornia to Oklahoma. We conclude that the record provides no basis to rever se the sentencing court’s enhancement of appellant’s offense level for posses sion of a firearm.
B Demeree also fails to persuade us that the districtcourt erroneously dismissed her Sixth Amendment speedy trial claim. 3 There was an eight-month delay between Demeree’s arrest and the commencementof her trial. Meanwhile, the government filed several successive superseding indictments, thus avoiding a violation of the Speedy Trial Act, which requires t he commencement of trial within 70 days from the filing of an indictment. S ee 18 U.S.C. § 3161(c)(1). Demeree now contends that by filing successive supe rseding indictments the government engaged in an unconstitutional ploy to s atisfy the requirements of the Act while delaying her trial so as to continue its investigation. Thus, Demeree argues, the government unconstitutionally prejudice d her ability to mount an effective defense because her accountant, who wouldhave provided potentially exculpatory testimony, died during the eight-month delay.- 7 -

In reviewing a Sixth Amendment speedy trial claim, we consider the length and reason for the delay, the prejudice to the defe ndant, and whether and how she asserted her right to a speedy trial. See Barker v. Wingo , 407 U.S. 514, 530-32 (1972). None of these factors, standing alone, is “sufficient or necessary” to establish a Sixth Amendment speedy trial violation. Id. at 533. The length of the delay serves as a “triggering mechanism”; only if t he length is “presumptively prejudicial” may we inquire further into the validi ty of the claimed violation. United States v. Tranakos , 911 F.2d 1422, 1427 (10th Cir. 1990) (citing Bark er , 407 U.S. at 530). Demeree argues that an eight-month delay is presump tively prejudicial. In a less complex case, however, we rejected the argum ent that a delay of seven months was presumptively prejudicial. See United States v. Dirden , 38 F.3d 1131, 1137-38 (10th Cir. 1994). Furthermore, the r ecord in this case suggests that the government filed successive superseding indictm ents because the charges against appellant stemmed from a complex drug distr ibution scheme involving many defendants and requiring extensive investigati on. Even if we consider the delay presumptively prejudi cial, Demeree fails to prove prejudice. Other than generalized assertions , she presents no evidence as to how her accountant would have testified. See Tranakos , 911 F.2d at 1429 (stating that to show prejudice, defendant must state with p articularity the content of- 8 -

exculpatory testimony lost by delays). Having fail ed to show prejudice, we conclude Demeree suffered no violation of her SixthAmendment speedy trial right. See United States v. Jenkins , 701 F.2d 850, 857 (10th Cir. 1983).
C The Sentencing Guidelines provide for the impositi on of a fine in all cases “except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2( a). Demeree claims that the district court erred when it assessed a fine as part of her sentence and ordered a forfeiture of her proceeds from a personal injury c laim. We review a district court’s ruling on a defendant’s ability to pay fine s for abuse of discretion. See United States v. Ballard , 16 F.3d 1110, 1114 (10th Cir. 1994). Nothing in the record warrants a conclusion that the district court abused its discretion when it assessed a fine against appellant. Appellant shows neither that she is unable to pay nor that she is unlikely to become able to pay in the future. A defendant’s present negative net worth and negative cash flow d o not necessarily prove an inability to pay fines assessed as part of a senten ce. See United States v. Peppe , 80 F.3d 19, 23 (1st Cir. 1996). Demeree also argues that the district court erred w hen it ordered the forfeiture of her personal injury proceeds. Relyin g on 21 U.S.C. § 853(d), which allows for the forfeiture of property linked to the violation of federal drug laws,- 9 -

Demeree claims that these proceeds are not tied to her drug operations. Substitute property can be forfeited, however, when property d erived from illegal drug trafficking “cannot be located upon the exercise of due diligence” or because “it has been substantially diminished in value.” 21 U. S.C. § 853(p). The government has the burden of proving by a preponder ance of the evidence that the requirements of the forfeiture statute are satisfie d. See Jenkins , 904 F.2d at 559. The district court properly instructed the jury on the forfeiture of substitute property and the government’s burden of proof. The record supports the jury’s conclusion that the government met its burden of pr oof. We therefore affirm the district court’s forfeiture order.
IV Green makes three separate claims: that the governm ent violated his Sixth Amendment right to confrontation; that the trial co urt refused to inform the jury of his indigence; that the joinder of offenses and defendants prejudiced his defense.
A Green’s Sixth Amendment confrontation claim present s questions of law that we review de novo. See Matthews v. Price , 83 F.3d 328, 332 (10thCir. 1996). Shortly after their arrests, appellant Deme ree and a co-conspirator, Terry Glenn, were placed in a police cruiser. The two su bsequently began a- 10 -

conversation that was captured by a recording devic e. The tape recording was admitted into evidence in Demeree and Green’s jointtrial. Green claims that because Demeree and Glenn did not testify at trial and were therefore unavailable for cross-examination, admission of their conversat ion violated his Sixth Amendment right to confrontation. The Sixth Amendment right to confrontation is impli cated when a trial court admits a confession of a non-testifying co-de fendant that inculpates another defendant. See Bruton v. United States , 391 U.S. 123, 126 (1968). Furthermore, the right to confrontation “requires that in a join t trial a defendant must be given the opportunity to cross-examine his codefendant wh en the government introduces a codefendant’s confession that incriminates the de fendant.” United States v. Hill , 901 F.2d 880, 883 (10th Cir. 1990). Extrajudicia l statements that fall within one or more “firmly rooted” hearsay exceptions, how ever, are admissible. Bourjilay v. United States , 483 U.S. 171, 182-83 (1987). Statements that are made by co-conspirators in furtherance of a conspir acy, such as those contained in the tape recording at issue, are admissible under F ed. R. Evid. 801(d)(2)(E) as an exception to the hearsay rules. See United States v. Molina , 75 F.3d 600, 603 (10th Cir. 1996). Green’s Sixth Amendment claim is therefore without merit.- 11 - B4 Although Green presents the issue as a refusal to take judicial notice, his claim

actually involves the trial court’s refusal to give a requested jury instruction. Notice of Green’s indigence was taken when the magistrate appointed counsel to represent him. In his Request to Take Judicial Notice, appellant asked the court “to instruct the jury that it may accept as conclusive the fact that [appellant] is financially indigent [and] therefore counsel was ordered to represent [him].” Denying this request, the trial judge said “I think anybody as well represented by such a highly respected member of the bar can’t have it both ways, that they would seek to suggest that they were indigent and still have the ability to receive such high caliber representation.” XXIV R. at 1088. Appellant does not take issue with the caliber of representation he received, and makes no claim that use of appointed counsel in any way prejudiced his defense. Therefore, appellant’s claim ultimately concerns the trial court’s refusal to give the jury his requested instructions. - 12 - There is also no merit to Green’s argument that the district court erroneously refused to inform the jury of his indig ence by failing to take judicial notice of his indigent status. 4 We review the district court’s refusal to grant the requested jury instruction for abuse of discretion. See York v. American Telephone and Telegraph Co. , 95 F.3d 948, 953 (10th Cir. 1996). The court found that Green failed to support his request for judicial notice of indigent status. We hold that the court’s denial of appella nt’s request was within its discretionary powers.
C The argument that the district court erroneously de nied Green’s request for severance of offenses and defendants fails as well. A district court’s denial of a severance motion is reviewed for abuse of discretio n. See United States v.- 13 -

Holland , 10 F.3d 696, 698 (10th Cir. 1993). A court may g rant severance if prejudice results from an otherwise proper joinder. See Fed. R. Crim. P. 14. Appellant claims that in joining the charges of con spiracy and operation of a continuing criminal enterprise with the charge of witness tampering, the prosecution failed to satisfy the technical require ments for joinder of offenses under Fed. R. Crim. P. 8(a). The witness tampering charge against Green is based on the allegation that he physically attacked and t hreatened Robert Smith, a prosecution witness, with the intent to influence, delay or prevent Smith’s testimony. The government alleges that in attempti ng to influence the witness in this case, Green sought to prevent the prosecution from uncovering his involvement in a conspiracy to operate a continuing criminal enterprise. The witness tampering charge is therefore related to th e charges of conspiracy and operation of a continuing criminal enterprise. Two or more offenses may be charged in the same indictment if they are similar in character, or arise from the same transaction or are part of a common scheme. S ee Fed. R. Crim. P. 8(a). Green also fails to prove, as required by Fed. R. C rim. 14, that the joinder prejudiced his defense. See Holland , 10 F.3d at 698. Joinder may result in prejudice if “there is a serious risk that a jointtrial would . . . prevent the jury from making a reliable judgment about guilt or inno cence.” Id. Green’s acquittal on the witness tampering charge is evidence that jo inder did not confuse the- 14 -

jurors. Indeed, Green fails to identify anything i n the record that demonstrates otherwise. Nor does Green demonstrate that joinder of defendants compromised his rights to a fair trial. Defendants who “are allege d to have participated in the same act or transaction or in the same series of acts ortransactions constituting the offense or offenses” may be tried jointly. Fed. R. Crim P. 8(b). Here, the government charged Green and his co-defendant with engaging in a conspiracy to violate federal drug laws. Furthermore, the genera l rule in this circuit is that persons jointly indicted should be tried together, see United States v. Wright , 932 F.2d 868, 876 (10th Cir. 1991), and are not entitle d to separate trials as a matter of right, see United States v. Green , 115 F.3d 1479, 1487 (10th Cir. 1997). Although severance is required if joinder of defendants would result in prejudice, see Fed. R. Crim. P. 14; United States v. Van Scoy , 482 F.2d 347, 348 (10th Cir. 1973), a defendant who seeks severance m ust prove prejudice, see United States v. Petersen , 611 F.2d 1313, 1331 (10th Cir. 1979). Green does not meet this burden. The propriety of joining defenda nts turns on whether it prevents the jury from “making a reliable judgment about guilt or innocence,” Zafiro v. United States , 506 U.S. 534, 539 (1993), not on the degree of ea ch codefendant’s culpability. See United States v. Williams , 45 F.3d 1481, 1483 (10th Cir. 1995). By properly instructing the jury, the district court cured the risk of- 15 -

prejudice resulting from the disparity of evidence against each joined defendant. In addition, although joinder barred Green from cal ling his co-defendants to testify in his behalf, he shows neither that he wou ld have called them to testify, nor that they would have provided exculpatory evide nce. See United States v. Dickey , 736 F.2d 571, 590 (10th Cir. 1984). Green’s chal lenge to the district court’s denial of his motion for severance must the refore fail. Green’s Eighth Amendment challenge to the constitut ionality of his sentence of life imprisonment without the possibili ty of parole also fails. To prevail on this claim, appellant must show that his punishment is grossly disproportionate to the severity of his offenses. See United States v. Newsome , 898 F.2d 119, 121-22 (10th Cir. 1990). We review the district court’s finding de
novo. See Neely v. Newton , 149 F.3d 1074, 1082 (10th Cir. 1998). The record reveals appellant led a well-organized and sophisti cated multi-state methamphetamine distribution network. Furthermore, the district court used the Sentencing Guidelines to calculate appellant’s sent ence. “Within the strictures of the Eight Amendment, determination of proper crimin al penalties is a matter for legislative bodies.” Id. at 122 (citing United States v. Gourley , 835 F.2d 249, 252-53 (10th Cir. 1987). Life imprisonment withoutparole is equal to the maximum sentence under the statutory scheme for vio lation of 21 U.S.C. § 846. Green’s sentence falls within the range prescribed by Congress.- 16 -

AFFIRMED. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge