                                                                               F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                                FEB 24 1999
                            FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                     No. 98-1135
                                                     (D.C. No. 97-CR-271-B)
    DOROTHY M. DUVALL,                                      (D. Colo.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT              *




Before BRORBY , EBEL , and LUCERO , Circuit Judges.


         Defendant Dorothy M. Duvall appeals from her conviction for one count of

making a false statement to and concealing a material fact from the Social

Security Administration in violation of 18 U.S.C. § 1001.       1
                                                                    Defendant claims: (1)

admission of other “bad act evidence” violated her right to due process because it

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
was impermissible under Federal Rule of Evidence 404(b); (2) the evidence was

insufficient to sustain her conviction because the government was unable to prove

one of the two false statements it alleged defendant made; and (3) the trial court

erred by allowing the government to introduce irrelevant evidence concerning

what happened to monies obtained by the false application. Our jurisdiction

arises under 28 U.S.C. § 1291. Finding no error, we affirm.


                                            I

      In determining whether evidence is sufficient to sustain defendant’s

conviction, we review the evidence, and the reasonable inferences to be drawn

therefrom, in a light most favorable to the government.    See United States v. Voss ,

82 F.3d 1521, 1524-25 (10th Cir. 1996). We review questions concerning

admission of evidence under an abuse of discretion standard,    disturbing the

district court’s ruling only on a showing that it was based on “a clearly erroneous

finding of fact or an erroneous conclusion of law or manifests a clear error of

judgment.” Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995).


                                            II

      In September 1992 defendant applied for child’s insurance benefits under

the Social Security Act on behalf of her fifteen-year old daughter, Laura Boyer.

Jacquelin Casias, an employee with the Social Security Administration, testified


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at trial that defendant represented to her that (1) there was no other legal

representative, guardian, or conservator of Laura other than defendant, and

(2) that Laura was living in the same household with defendant.         See Rec. Vol. II

at 32-34. Ms. Casias filled out the application according to the answers defendant

gave her, see id. at 34, and defendant was instructed to read the completed

application, make any corrections, and to sign and date it, which she did.       See id.

at 42. In fact, defendant’s right to custody of Laura had been terminated in 1985

and it is undisputed that Laura had not lived with defendant since that date.      See

id. at 80-81. Defendant received benefits as the representative payee for Laura

until 1995, when Laura went to the Social Security Administration and asked to

be made the direct payee of the benefits.     See id. at 88. Defendant was then

charged with the count of making false statements to receive Laura’s benefits.


                                            III

       At trial, when the government’s attorney began to elicit testimony from

Laura that she was taken away from defendant’s custody in 1985 following a

dependency and neglect hearing, defendant objected to the admission of that

evidence on the basis of relevance.     See id. at 76; Fed. R. Evid. 402. The

government argued that the fact that Laura was not in her mother’s custody after

1985 was material to disprove defendant’s statement that Laura was living with

defendant at the time of the application. The government also argued that the fact

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that Laura’s custody was changed on a finding of abuse was a relevant

concealment of fact.    See Rec. Vol. II at 77. The court ruled that, while the fact

of loss of custody was relevant and material, the detail of the asserted abusive

relationship would be unfairly prejudicial, and instructed Laura not to testify as to

such details. See id. at 77, 79-80.

       Now, defendant changes the basis of her objection to Rule 404(b) of the

Federal Rules of Evidence, which provides that “[e]vidence of other . . . wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity therewith.” Fed. R. Evid. 404(b). Because Defendant did not make

this objection at trial, we review for “plain error.”   See United States v. Mendoza-

Salgado , 964 F.2d 993, 1008 (10th Cir. 1992).

       In general, Rule 404(b) excludes evidence meant to prove a defendant acted

in conformity with her prior “bad acts.” Evidence that Laura was taken from

defendant’s custody after a dependency and neglect hearing is not evidence of a

“prior bad act” by defendant that would be precluded by Rule 404(b), thus we

reject appellant’s argument.

       We next address appellant’s second evidentiary challenge. Before trial

defendant objected, for lack of relevance, to introduction of an exhibit that

purported to prove defendant’s alleged misuse of the monies she obtained as

Laura’s representative payee. Offer of the exhibit was rejected.     See Rec. Vol. II


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at 10-11. On direct examination of Laura, the government attempted to elicit

testimony tracking the benefits. The court, sua sponte, warned the government

that it was “crossing the line” and instructed counsel that such testimony could

only be garnered on rebuttal.   See id. at 87. On cross-examination, defendant

proceeded to elicit testimony that defendant had shown Laura a joint bank account

in her name containing more than $20,000; that defendant was holding the money

for Laura’s benefit; and that defendant had expressed a desire to conserve or save

the money. See id. at 93-94. On redirect, the government then pursued testimony

about whether Laura had ever received the money. The court overruled a defense

objection to such line of questions, holding that defendant had “opened the door.”

Id. at 95. “Admission of rebuttal evidence, particularly when Defendant ‘opens

the door’ to the subject matter, is within the sound discretion of the district

court.” United States v. Burch , 153 F.3d 1140, 1144 (10th Cir. 1998). Under the

circumstances, we cannot say that the district court abused its discretion in

admitting the rebuttal testimony.


                                          IV

       The grand jury indictment charges that defendant falsely “stated there was

no legal representative for [Laura].” Rec. Vol. I, Doc. 1 at 1. We are

handicapped in determining whether defendant made such a false statement, in

that the parties did not provide this court with any exhibits, let alone the

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application. We learn from the transcript, however, that question number five on

the application, to which appellant responded in the negative, inquired: “Is there

a legal representative, guardian, conservator of the child?”   Id. Vol. II at 32.

       There is a dispute as to the circumstances under which question five was

answered in the negative. Ms. Casias testified that question five raised the

custody issue--whether the child was living with the person who had legal

custody. See id.    On cross-examination, Ms. Casias testified that, regarding

question five, always her practice was to question applicants as to whether

another person had custody of the child for whom the application was being made.

See id. at 51.

       Defendant, on the other hand, testified that she understood question five to

inquire whether a lawyer was representing Laura, and that Ms. Casias did not

explain what a legal representative was.     See id. Vol. III at 193. Defendant

argues that because the government failed to present evidence identifying Laura’s

“legal representative” in the state legal proceedings, and because the Uniform

Dissolution of Marriage Act requires a child’s “legal representative” to be an

attorney, the government did not present sufficient evidence to prove that

defendant lied when she answered question five in the negative. We disagree.

Ms. Casias’ testimony that she always explained to applicants that the question

regarding “legal representative, guardian, or conservator” asked whether another


                                            -6-
person had custody of the child is sufficient evidence to sustain a jury

determination.

      AFFIRMED.


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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