                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 16 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                         No. 02-1060
    v.                                             (D.C. No. 01-CR-215-M)
                                                        (D. Colorado)
    DEBORAH ELLEN HUDDY,

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         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.

         Appellant Deborah Ellen Huddy was convicted of multiple counts of wire

fraud, mail fraud, and money laundering following a jury trial. Mrs. Huddy and



*
      This order and judgment is not binding precedent, except under the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.
her husband, Craig Huddy, had obtained numerous gift checks from American

Express by submitting fraudulent orders that appeared to be authorized by

Mrs. Huddy’s former employer, U.S. West. They deposited these checks in

a variety of their own bank accounts, as well as an account owned by Robert

Baier, a friend and former employer of Mrs. Huddy. Mr. Huddy testified

extensively on Mrs. Huddy’s behalf at trial, asserting that he had forged her

signature on all but the first four fraudulent gift check orders. Mr. Huddy

maintained that Mrs. Huddy was unaware of the scheme.

       Nonetheless, the jury concluded she was guilty. Mrs. Huddy was sentenced

to forty-six months’ imprisonment and ordered to pay $365,145–the total amount

lost by American Express–in restitution. Mr. Huddy, who pled guilty, was also

ordered to pay $365,145 in restitution. Mrs. Huddy now appeals both her

conviction and the restitution order. She raises six arguments, which we address

in turn.

       Admission of Rule 404(b) Evidence

       First, Mrs. Huddy argues that the district court erred in admitting prior bad

acts evidence under Federal Rule of Evidence 404(b). We review the district

court’s decision on Rule 404(b) evidence for abuse of discretion.   See United

States v. Wilson , 107 F.3d 774, 782 (10th Cir. 1997).




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      Among other factors, to be admissible under Rule 404(b), evidence of prior

bad acts by a defendant must be relevant for some other reason than showing the

defendant’s propensity to commit a crime–such as motive, opportunity, or

knowledge. See Huddleston v. United States      , 485 U.S. 681, 685-86 (1988).

Further, such evidence is relevant only if a jury could reasonably conclude that

the acts occurred and that the defendant committed them.     See id. at 689.

Mrs. Huddy argues that these factors were not met in this case.

      Here, the Rule 404(b) evidence was a fraudulent student loan application by

Mrs. Huddy using the forged signature of Mr. Baier. In requesting that this

evidence be admitted, the government stressed that Mr. Baier had been used by

the Huddys both in the student loan fraud and in the fraud charged in this case.

It was on this basis that the district court found the 404(b) evidence relevant.

Prior bad acts evidence may be used to establish identity through a consistent

method of committing a crime.    See United States v. Porter , 881 F.2d 878, 886

(10th Cir. 1989). We conclude that the evidence was relevant to show

Mrs. Huddy’s modus operandi in her fraudulent schemes.

      We further conclude that the jury could have reasonably found that

Mrs. Huddy committed the prior bad act. While Mr. Huddy testified that

Mrs. Huddy was unaware of the student loan fraud, he did concede that




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Mrs. Huddy herself had signed the fraudulent application. The jury could have

reasonably concluded that Mrs. Huddy bore responsibility for the deception.

         Evidence is admissible under 404(b) only if its probative value is not

substantially outweighed by unfair prejudice        See Wilson v. Muckala , 303 F.3d

1207, 1217 (10th Cir. 2002). Mrs. Huddy has not shown that any unfair prejudice

arising from the Rule 404(b) evidence substantially outweighed its probative

value.

         Exclusion of Reenactment of Forgery by Mr. Huddy

         Mrs. Huddy further argues that it was error for the district court to exclude

a forgery demonstration by her husband. We also review this decision for abuse

of discretion.   United States v. Johnson , 971 F.2d 562, 571 (10th Cir. 1992).    1



We conclude that the district court did not abuse its discretion in determining that

a demonstration of Mr. Huddy’s forgery skills at the time of the trial was not

relevant to his credibility in describing past events.     See R. Supp. Vol. 1, at 16.




1
       Mrs. Huddy argues that this issue should be reviewed de novo, as a
violation of the accused’s due process right to present her theory of the defense.
However, while the right of a defendant to call witnesses on her own behalf
is fundamental, the right to choose the manner of that testimony is not.        See
United States v. Adams , 271 F.3d 1236, 1243 (10th Cir. 2001),        cert. denied ,
535 U.S. 978 (2002).

                                              -4-
      Reliability of the American Express Records

      Mrs. Huddy argues that it was error to admit certain American Express

records (showing that a woman identifying herself as Deborah Huddy had

contacted American Express regarding the gift check orders) because they

were unreliable. To be admissible, business records must be trustworthy.       See

Fed. R. Evid. 803(6);   Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co.    ,

71 F.3d 335, 341 (10th Cir. 1995). This evidentiary ruling also falls under the

abuse-of-discretion standard of review.    Johnson , 971 F.2d at 571.

      As the district court determined, testimony at trial established that the only

inaccuracies in the records were confined to incorrect identification of the

American Express employee entering the information; there was no indication of

other problems with the records suggesting lack of trustworthiness. Accordingly,

the district court did not abuse its discretion in admitting the evidence.

      The District Court’s Treatment of the Jury’s Question

      Mrs. Huddy argues that the district court erred in deciding not to respond to

a juror’s question (submitted before the close of evidence and before deliberations

had begun) without first consulting with the attorneys while Mrs. Huddy was

present. We review this issue for plain error because Mrs. Huddy did not object

when the district court announced its decision regarding the juror question.




                                           -5-
Fed. R. Crim. P. 52(b);    United States v. McDonald , 933 F.2d 1519, 1524

(10th Cir. 1991).

       We have held that, if a jury submits a question to the court, and if the

question is answered, it “must be answered in open court and only after providing

counsel an opportunity to be heard.”         United States v. Carter , 973 F.2d 1509,

1515 (10th Cir. 1992). Here, however, the court did not respond to the question

and had no contact with the jury. We find no error in the district court’s conduct.

       The Restitution Order

       Mrs. Huddy additionally argues that the district court erred in its restitution

order. Mr. and Mrs. Huddy were sentenced by separate judges, and each judge

ordered each defendant to pay the full amount of the victim’s loss in this case.

There was no objection to the restitution order at the time it was imposed;

therefore our review is for plain error. Fed. R. Crim. P. 52(b). An illegal

restitution order constitutes plain error.      United States v. Herndon , 982 F.2d 1411,

1421 (10th Cir. 1992).

       Our precedents interpreting the Victim and Witness Protection Act,

18 U.S.C. § 3663, prohibit a victim from collecting restitution beyond the amount

of the victim’s actual loss.    See United States v. Gottlieb    , 140 F.3d 865, 873

(10th Cir. 1998). We therefore vacate Mrs. Huddy’s restitution order and remand




                                               -6-
to the district court for the limited purpose of clarifying that Mrs. Huddy’s

liability is joint and several with that of her husband.    2



        Cumulative Error

        Mrs. Huddy argues that her conviction should be reversed due to

cumulative error. Cumulative error analysis does not apply where there were no

errors at trial.   See United States v. Rivera   , 900 F.2d 1462, 1470 (10th Cir. 1990)

(en banc). Because Mrs. Huddy has only demonstrated error with respect to

a sentencing issue, cumulative error analysis does not apply.

        The restitution order is VACATED and REMANDED for clarification in

accordance with the principles described above. In all other respects, the

judgment of the district court is AFFIRMED.


                                                           Entered for the Court



                                                           Robert H. Henry
                                                           Circuit Judge




2
       The provisions of the Mandatory Victim’s Restitution Act, 18 U.S.C.
§§ 3663A, 3664, do not conflict with the requirement of joint and several liability
in such cases. See United States v. Scott , 270 F.3d 30, 52-53 (1st Cir. 2001)
(examining legislative history of § 3664(h) and concluding that where multiple
defendants are made liable for entire amount of victim’s loss, restitution order
must be interpreted to impose joint and several liability), cert. denied , 535 U.S.
1007 (2002).

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