                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 98-4127
      ___________

United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *
                                         *
Kenneth G. Brockman,                     *
                                         *
            Appellant.                   *

      ___________
                                             Appeals from the United States
      No. 98-4128                            District Court for the
      ___________                            District of Nebraska.


United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *
                                         *
Carolyn A. Kruger,                       *
                                         *
            Appellant.                   *

                                   ___________

                              Submitted: June 15, 1999
                                  Filed: July 16, 1999
                                    ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1 District
      Judge.

                                    ___________

BYRNE, District Judge.


       Kenneth G. Brockman and Carolyn A. Kruger appeal their convictions for
multiple counts of mail fraud and wire fraud, and conspiracy to commit mail fraud and
wire fraud, in violation of 18 U.S.C. §§ 371, 1341, 1343. Kruger also appeals her
sentence. We affirm.

                               I.   BACKGROUND

       Kruger was the President of Biologically Guided Life Systems, Inc. (“BGLS”),
and Brockman has been variously described as the founder of BGLS and, at times, as
a consultant to the company. BGLS was represented to be a research, development,
and marketing company working in the field of alternative health care. Between 1984
and 1997, Brockman, Kruger, and others working at their direction represented that
they were in the process of developing numerous business projects that would result
in broader availability of alternative health resources and would be quite lucrative for
those who assisted in bringing the projects to fruition. Among the proposals were
projects involving the development of motivational tapes, infomercials, health resorts,
diagnostic centers, treatment clinics, and health depots.

      Over a thirteen-year period, appellants solicited more than $5,000,000 from


      1
        The Honorable Wm. Matthew Byrne, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.

                                          -2-
lenders and investors while representing that their business projects were close to
completion. Appellants told lenders that funds were needed for a very short period of
time, until “major funding” was obtained from large-scale individual and institutional
investors. Appellants further represented that funds lent to BGLS or its principals
would be repaid in a matter of weeks or months at interest rates ranging from 16% to
300% per annum. In fact, not one of the projects described to potential lenders and
investors was ever developed to the point that it made money, no major funding was
ever obtained, and less than $500,000 was ever repaid.2

       Appellants also made other misrepresentations to raise money. Some lenders
and investors were told, for instance, that they would be provided stock in certain
companies in exchange for providing monies to BGLS and its principals. Other lenders
and investors were given specific assurances that they would be repaid within thirty
days upon request. Brockman told some lenders that he had multimillion dollar job
offers which he could always accept as a means of paying off lenders if his projects
failed. Kruger told at least one lender that she would take a job to pay back a loan if
the projects did not succeed. Finally, certain lenders were told that they would be
allotted area manager positions or sales territories which would allow them to
participate in the marketing of BGLS’ products and services. Appellants never
delivered on any of these promises.

       In the spring of 1996, search warrants were executed on the business premises
and home of appellants. Seized during the searches were several statements prepared
by Brockman and signed by Kruger in which Kruger confessed to various acts of fraud.
In one, entitled “Confession of Guilt, Admission to Criminal Activity,” Kruger admitted
defrauding investors by failing to disclose to them the true risks associated with their
loans and stated that when she convinced people to become lenders, she did so


      2
       Since no projects were taken to the money-making stage, repayments to early
lenders were made out of funds obtained from later lenders.

                                          -3-
“without any intention of seeing them repaid.”



       Appellants were indicted on April 23, 1997. Kruger moved to dismiss her
indictment for unreasonable pre-indictment delay. The motion was denied, and Kruger
was convicted following a jury trial of conspiracy to commit mail fraud and wire fraud,
five counts of mail fraud, and one count of wire fraud. The court deemed Brockman,
who was initially represented by a federal public defender, to have the financial ability
to retain counsel and thus directed the public defender to withdraw from the case.
Brockman proceeded to trial pro se and was convicted along with Kruger on the same
counts.

      The court enhanced Kruger’s sentencing range under U.S.S.G. § 3B1.1 based
upon her leadership role in the conspiracy and sentenced her to 39 months
imprisonment. Brockman, who also received an enhancement for his role in the
offense, was sentenced to 78 months imprisonment.

                                 II.   DISCUSSION

       On appeal, Kruger contends that the district court erred by failing to dismiss her
indictment for unreasonable pre-indictment delay and by enhancing her sentencing
range under U.S.S.G. § 3B1.1. Brockman contends that the district court erred when
it discharged the public defender prior to trial, failed to advise him of his Fifth
Amendment right not to testify, and permitted jurors to question witnesses.

A.    Pre-indictment delay

       Kruger filed a motion to dismiss the April 23, 1997 indictment for unreasonable
pre-indictment delay under the Fifth Amendment. Kruger argued that the government
should have brought an indictment no later than 1992 and suggested that the

                                          -4-
government’s five-year delay prejudiced her through the loss of crucial witness
testimony and other evidence. Kruger specifically identified four witnesses as
unavailable. The first, a lender who had been substantially repaid, had passed away.
The second, an investor and staunch supporter of BGLS, had been incapacitated by a
stroke. The third and fourth witnesses, a lender and a strong supporter of appellants’
businesses, respectively, had also passed away.

        While “[s]tatutes of limitation provide the primary guarantee against prosecution
of a defendant on overly stale charges,” the due process clause does have “a ‘limited
role to play in protecting against oppressive delay.’” United States v. Bartlett, 794 F.2d
1285, 1289 (8th Cir. 1986) (quoting United States v. Lovasco, 431 U.S. 783, 789
(1977)). Pre-indictment delay is sufficiently “oppressive” to warrant dismissal of an
indictment where the delay is unreasonable and the defendant is actually and
substantially prejudiced in the presentation of her case. See id. The actual and
substantial prejudice issue is ordinarily considered first. See United States v. Benshop,
138 F.3d 1229, 1234 (8th Cir. 1998).

        A defendant bears the burden of proving actual and substantial prejudice
attributable to pre-indictment delay. See Lovasco, 431 U.S. at 789-90; Bartlett, 794
F.2d at 1289. “To prove actual prejudice, a defendant must specifically identify
witnesses or documents lost during delay properly attributable to the government.”
Bartlett, 794 F.2d at 1289. It is not sufficient for a defendant to make speculative or
conclusory claims of possible prejudice as a result of the passage of time. See id. at
1289-90; see also United States v. Marion, 404 U.S. 307, 325-26 (1971). Nor may a
defendant establish actual prejudice without “relat[ing] the substance of the testimony
which would be offered by the missing witnesses or the information contained in lost
documents in sufficient detail to permit a court to assess accurately whether the
information is material to the accused’s defense.” Bartlett, 794 F.2d at 1290. Finally,
it is defendant’s burden to show that the lost testimony or information is not available
through another source. See id.

                                           -5-
        The district court found no actual and substantial prejudice from the pre-
indictment delay. The court emphasized that the lenders who were unavailable to
testify represented only four of approximately 260 lenders to BGLS and its principals.
As recently as 1994, defendants had received more than sixty lender statements in
which individuals who had provided funds to BGLS stated that they were not
fraudulently induced to loan money and that they knew that their funds were to be used
for “personal and business expenses.” Finally, the district court noted that appellants
had retained impeccable documentary evidence of their business transactions that could
establish the fact of repayment to lenders who were no longer available to testify.

        The district court’s finding was not clearly erroneous. See id. at 1291 n.7
(district court’s findings with respect to prejudice from pre-indictment delay reviewed
for clear error). Even assuming that Kruger offered sufficiently detailed allegations of
what the four unavailable witnesses would have said had they testified, Kruger did not
sustain her burden of establishing actual and substantial prejudice from the delay.
Specifically, Kruger failed to show that any of the lost testimony was not available
through other sources. The fact that one or more of the unavailable lenders had been
repaid could be established through documentary evidence, and several hundred other
lenders, including approximately sixty lenders who had expressed satisfaction with
appellants’ handling of their loans, remained available to testify.3

      On appeal, Kruger also suggests a second type of prejudice that stemmed from


      3
       While Kruger contends that she should have been excused from the usual burden
of proving actual and substantial prejudice in light of the scope of conspiracy alleged
and the failure to issue a bill of particulars, she offers no support for this proposition.
In any event, Kruger had all of the information she needed to identify actual and
substantial prejudice without a bill of particulars. Appellants’ own records identified
each of the lenders with whom they had dealt over the life of the alleged conspiracy,
and the district court required the government to disclose the identities of those persons
with whom appellants were alleged to have conspired.

                                           -6-
the pre-indictment delay, that being the higher sentence she faced as a result of
increasing amounts of loss throughout the period of delay. This allegation of prejudice
is more creative, but ultimately no more meritorious, than the first. It is questionable
whether an increased sentence is the type of prejudice against which the Fifth
Amendment is intended to protect, i.e., prejudice to a defendant “in the presentation of
his case.” Id. at 1289. Moreover, while we have not addressed claims of sentencing
prejudice in the Fifth Amendment context, we have rejected analogous claims of
“sentencing entrapment” in challenges to actual sentences imposed. See, e.g., United
States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir. 1991).

      Several other circuits have more directly considered and rejected claims of
sentencing prejudice in the Fifth Amendment context. In United States v. Spears, 159
F.3d 1081 (7th Cir. 1998), the Seventh Circuit considered a defendant’s argument that
he had been prejudiced by pre-indictment delay because, during the time between the
offense and the indictment, he had accumulated seventeen additional criminal history
points. The court analogized the defendant’s claim to one of sentencing manipulation
and rejected the claim, noting that “[a]ny sort of prejudice [defendant] may have
suffered was the result of his own criminal conduct, and not from any government
misconduct.” Id. at 1086.4 In United States v. Martinez, 77 F.3d 332 (9th Cir. 1996),
the Ninth Circuit reached the same result on different grounds, holding that any
sentencing prejudice caused by pre-indictment delay is too speculative to implicate a
due process right. Id. at 336-37. The court emphasized that “[t]he sentencing
guidelines are not the procrustean bed sometimes supposed” and that a district court
may make a downward departure to account for the harshness of a sentence attributable

      4
       While the additional criminal history points in Spears stemmed from conduct
unrelated to the offense of conviction, the due process implications are the same where
a defendant’s later conduct forms part of the charged offense. See United States v.
Music, 1998 WL 609719, at *2 (4th Cir. Sept. 1, 1998) (unpublished opinion) (“The
Government’s conduct in this case, simply letting fraudulent transactions continue, does
not amount to outrageous conduct resulting in a due process violation.”).

                                          -7-
to pre-indictment delay. Id.

      Because we have previously rejected sentencing claims analogous to Kruger’s,
and other circuits have uniformly rejected these same claims in the Fifth Amendment
context, the district court did not err in denying Kruger’s motion to dismiss her
indictment for unreasonable pre-indictment delay.

B.    Discharge of court-appointed counsel

       During the years leading up to his indictment, Brockman had employed the
services of attorney Michael Pistillo. Following the issuance of a civil injunction in
May 1996, Pistillo advised Brockman to request a public defender. An attorney from
the Federal Public Defender’s Office was appointed and thereafter represented
Brockman in pre-indictment criminal matters. Following Brockman’s indictment, and
upon review of the Pretrial Services Report, the government filed a Motion to
Determine Eligibility for Appointed Counsel. The magistrate judge found that
defendant was financially able to obtain counsel and directed the public defender to
withdraw from the case. The district court rejected Brockman’s appeal of the
magistrate judge’s ruling. Brockman proceeded to trial pro se.5 Brockman contends
that the district court erred when it discharged the public defender in violation of his
Fifth and Sixth Amendment rights.

       The Criminal Justice Act (“CJA”) was passed by Congress in 1964 “to insure
that defendants who are financially unable to afford trial services necessary to an
adequate defense are provided them in accordance with the Sixth Amendment to the
United States Constitution.” United States v. Barcelon, 833 F.2d 894, 896 (10th Cir.
1987). Counsel must be appointed under the CJA if the court is satisfied after


      5
           Brockman did retain counsel to represent him at the sentencing stage, and
Brockman is also represented on appeal.

                                          -8-
“appropriate inquiry” that the defendant is “financially unable to obtain counsel.” 18
U.S.C. § 3006A(b); see Barcelon, 833 F.2d at 897. When requesting the appointment
of counsel, the burden is on the defendant to show that he is “financially unable” to
afford representation. See United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir.
1997). Financial inability to pay “is not the same as indigence or destitution,”
Museitef v. United States, 131 F.3d 714, 716 (8th Cir. 1997), and doubts as to
eligibility should be resolved in a defendant’s favor. See United States v. Harris, 707
F.2d 653, 660 (2d Cir. 1983). The district court’s assessment of a defendant’s ability
to afford representation is reviewed for clear error. See United States v. O’Neil, 118
F.3d 65, 74 (2d Cir. 1997); United States v. Kane, 955 F.2d 110, 112 (1st Cir. 1992).

       The district court’s factual determination that Brockman was financially able to
afford representation was not clearly erroneous. The evidence presented showed that
Brockman received “living expenses” of about $10,000 a month pursuant to a joint
venture agreement he had with a company named 3KM. Among Brockman’s monthly
“living expenses” were lease payments on four automobiles totaling nearly $2,300 per
month,“dependent” support expenses of $1,500 per month, and groceries and
nutritional expenses of $1,340 per month. The itemized expenses Brockman submitted
in connection with his appeal of the magistrate judge’s ruling on the motion further
revealed monthly payments of $200 a month for cellular phone service on five phones
and at least periodic payments on credit cards belonging to persons other than
Brockman’s “dependents.”

       Given the broad range of “living expenses” for which Brockman received funds
under the joint venture agreement, it was not clearly erroneous for the court to find that
Brockman could obtain reimbursement for legal fees. Nothing in the joint venture
agreement precluded reimbursement for legal fees, and Brockman never called the
principals of 3KM to testify nor provided any written correspondence from them in




                                           -9-
connection with the government’s motion or his appeal of the magistrate judge's ruling.6
Moreover, Brockman’s itemized expenses for April 1997 included a $250 payment to
attorney Pistillo for “legal services.” While Brockman contends that the court should
have gone further in attempting to ascertain whether reimbursable "living expenses"
under the joint venture agreement included criminal defense fees, it is Brockman who
bore the burden of establishing his inability to afford representation. Despite numerous
filings and appearances before the magistrate judge and district court, Brockman failed
to satisfy this burden.7

C.    Fifth Amendment right not to testify

       Brockman next contends that his Fifth Amendment rights were violated by the
district court’s failure to advise him of his right not to testify. Brockman recognizes
that the district court does not ordinarily have a duty to sua sponte advise a defendant
of his right not to testify. Brockman suggests, however, that the court acquires such
a duty where the defendant is proceeding pro se.



      6
       It was not until several months after the public defender had withdrawn from the
case that Brockman first submitted correspondence from 3KM purporting to preclude
reimbursement for criminal defense fees. Brockman submitted the correspondence in
connection with a request for CJA funds to retain investigators and cover such
expenses as computer-assisted legal research and filing fees. However, Brockman
never moved for reconsideration of the district court’s ruling on his eligibility for
appointed counsel after the correspondence had finally been provided to the court.
      7
       While Brockman also asserts an ineffective assistance of counsel argument,
contending that his own pro se representation was not objectively reasonable and
prejudiced his defense, it is well established that a defendant who exercises his right
to appear pro se cannot thereafter complain that the quality of his own defense
amounted to a denial of effective assistance of counsel. See McKaskle v. Wiggins,
465 U.S. 168, 177 n.8 (1984); see also United States v. Baker, 84 F.3d 1263, 1267
(10th Cir. 1996).

                                         -10-
       We need not decide this issue as the district court did advise Brockman, before
he took the stand, of his right not to testify. If there was any doubt that Brockman
understood this right, one need look no further than Brockman’s own closing argument
to the jury:
       Obviously in cases that at least are publicized the defendants seldom ever
       testify. And there is a reason for that, because, number one, they don’t
       have to. And if they don’t have to, then if they feel uncomfortable about
       what might happen if they do testify, they usually choose not to. That
       option was made to me and I chose to testify, and the reason I chose to
       testify is I know in my heart I have nothing to hide.

(Tr. at 2308-09). Thus, even if the court had a duty to advise Brockman of his right not
to testify, Brockman’s Fifth Amendment claim would fail.

D.     Questioning by jurors

       Brockman’s final contention is that the district court erred in permitting jurors
to ask questions of the witnesses during the course of the trial, thus placing jurors in the
role of advocates rather than impartial factfinders. We have previously held that “the
practice of allowing juror questions is a matter committed to the sound discretion of the
district court and is not prejudicial per se.” United States v. George 986 F.2d 1176,
1178 (8th Cir. 1993). Because Brockman failed to object to juror questioning at trial,
review is for plain error. See United States v. Tulk, 171 F.3d 596, 599 (8th Cir. 1999).

       In United States v. Groene, 998 F.2d 604, 606 (8th Cir. 1993), we held that
allowing jurors to ask questions of witnesses is not plain error. “Various panels of this
circuit, nonetheless, have expressed considerable uneasiness about the practice,
especially where . . . the individual jurors posit questions within the hearing of the
whole jury.” Id.

       The reasons given for being skeptical of the procedure . . . are that juror

                                           -11-
      questioning may tend to transform jurors from neutral fact finders into
      advocates, that the process of formulating questions may precipitate
      prematurely the deliberation phase of trial, that jurors may weigh more
      heavily the answers to questions from each other than the answers to
      questions from counsel, that jurors may ask questions about legally
      irrelevant and legally inadmissible evidence, and that an objecting party
      risks alienating the jury.

Id.; see also United States v. Bascope-Zurita, 68 F.3d 1057, 1064 (8th Cir. 1995).

       Notwithstanding the risks inherent in juror questioning, the procedure the district
court employed in this case conformed to our prior directives. See George, 986 F.2d
at 1179 (finding no prejudice where jurors directed questions to the bench and, if the
court deemed the question proper, the witness was instructed to answer it); see
also United States v. Land, 877 F.2d 17, 19 (8th Cir. 1989) (finding no prejudice even
though juror questions were stated out loud before the court had ruled them proper).
Indeed, the procedure employed in this case mirrored that suggested in Groene: “[I]f
juror questions are allowed, the trial court should carefully weigh using a procedure
that requires those questions to be submitted in writing or out of the hearing of (and
without discussion with) other jurors.” Groene, 998 F.2d at 606.

       Because Brockman has identified no more than speculative prejudice from the
district court’s procedure or from juror questioning generally, the district court did not
commit plain error.

E.    Sentencing enhancement for role in offense

        Kruger’s final contention is that the district court improperly enhanced her
sentence under U.S.S.G. § 3B1.1 when it increased her offense level by four because
of her role in the offense. Section 3B1.1(a) provides for an four-level enhancement
“[i]f the defendant was an organizer or leader of a criminal activity that involved five

                                          -12-
or more participants or was otherwise extensive.” To qualify for an adjustment, the
defendant must have been the organizer or leader of one or more “participants,” §
3B1.1, comment. n.2, with a “participant” defined as “a person who is criminally
responsible for the commission of the offense.” § 3B1.1, comment. n.1. Persons who
are not indicted or tried, but who are nonetheless criminally responsible for defendant’s
crime, are “participants” under § 3B1.1. See § 3B1.1, comment. n.1; United States v.
Freeman, 30 F.3d 1040, 1042 (8th Cir. 1994).

       Section 3B1.1 employs a “broad definition” of what constitutes an organizer or
leader, and “[a] defendant need not directly control others in the organization to have
functioned as an organizer.” United States v. Morris, 18 F.3d 562, 569 (8th Cir. 1994).
Among factors considered in evaluating a defendant’s role in the offense are

      the exercise of decision making authority, the nature of participation in the
      commission of the offense, the recruitment of accomplices, the claimed
      right to a larger share of the fruits of the crime, the degree of participation
      in planning and organizing the offense, the nature and scope of the illegal
      activity, and the degree of control and authority exercised over others.

§ 3B1.1 comment. n.4; see also United States v. Maejia, 928 F.2d 810, 816 (8th Cir.
1991).

      A § 3B1.1(a) enhancement may be imposed on the organizer or leader of a
criminal activity that involved fewer than five participants if the criminal activity “was
otherwise extensive.” The “otherwise extensive” language “refers to the number of
persons involved in the operation, and includes all persons involved during the course
of the entire offense, including outsiders who did not have knowledge of the facts.”
United States v. West, 942 F.2d 528, 531 (8th Cir. 1991) (internal quotations and
citations omitted). While extensiveness is generally determined based upon the number
of persons involved in the commission of an offense, courts also consider the amount
of loss caused by the offense. See, e.g., Morphew v. United States, 909 F.2d 1143,

                                           -13-
1145 (8th Cir. 1990) (“Whether or not there were five or more
persons involved, it is plain that an enterprise generating a ‘take’ of over a quarter
million dollars can properly be regarded as ‘extensive.’”).



       The district court’s finding that Kruger was a leader or organizer is amply
supported by the record, and Kruger does not attack this finding. Kruger instead
contends that the district court erred in finding that there were at least five participants
in the offense or, alternatively, that the criminal activity was otherwise extensive. The
district court, however, specifically identified four people who appeared to be
participants for purposes of § 3B1.1(a) and noted that other “con men” were brought
in to give legitimacy to the business. The court also found that the $5.8 million,
thirteen-year scheme was otherwise extensive for purposes of enhancement, pointing
out that a number of other people had been used, “wittingly or unwittingly, to make this
work.” Neither of these findings was clearly erroneous. See United States v. Dijan,
37 F.3d 398, 403 (8th Cir. 1994) (district court’s determination of defendant’s role in
an offense reviewed for clear error).8

                                III.    CONCLUSION

      For the foregoing reasons, we AFFIRM appellants’ convictions and Kruger’s
sentence.

       A true copy.



       8
       In her reply brief, Kruger also contends that the district court engaged in
impermissible double counting by enhancing her sentence under U.S.S.G. §§ 2F1.1 and
3B1.1. This contention, and each of the other contentions raised for the first time in the
reply brief, lack merit. See United States v. Willis, 997 F.2d 407, 418-19 (8th Cir.
1993) (rejecting an identical double-counting argument).

                                           -14-
Attest:

      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                     -15-
