* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUL 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GLORIA TENEUVIAL WARD, aka Tamara Joy Mangum, Tammy Christensen, Tammy Mangum, Defendant-Appellant. No. 97-4152 (D.C. No. 97-CR-122-001) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, C ircuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument.-2-

Gloria Teneuvial Ward was convicted of two counts o f social security fraud, in violation of 42 U.S.C. § 408(a)(3), and two counts of making a false statement, in violation of 18 U.S.C. § 1001. We ex ercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm and remand.
I. Ward married Paul Daniel Christensen in 1979 and Le slie Joy Christensen was born in 1980. Ward and Christensen were divorc ed in 1984. Ward then lived with Robert Gunn for a short time and her second ch ild, Courtnie Joy Christensen, was born on November 26, 1985. In early 1986, Wardrequested that the State of Utah collect child support obligations from Gunn, and declared in an affidavit:

1. Between December 1984 and February 1985 I had se xual intercourse with Robert Q. Gunn. 2. The child, Courtnie Joy Christensen was born to me November 26, 1985 on which date I was not married t o Robert Q. Gunn. 3. During the probable time of conception of Courtn ie Joy Christensen, I had sexual intercourse with no male other than Robert Q. Gunn. 4. Upon my best knowledge and understanding, I beli eve Robert Q. Gunn to be the father of Courtnie Joy Chr istensen. Record Supp. I, Exh. 1. Gunn submitted to a blood test and the results showed a 99.44 percent chance he is Courtnie’s father. Gunnacknowledged paternity and has paid child support and maintained insurance cov erage for Courtnie since1 Gunn ceased making support payments in 1996 when he and his wife

gained custody of Courtnie. Courtnie remains in th eir custody. -3- 1986. 1 Paul Christensen died on January 8, 1991, and Ward received benefits on behalf of Leslie through the SSA Survivors Insuranc e Program. On January 19, 1994, Ward applied for social security benefits forCourtnie by claiming she was also the child of Christensen. After receiving nin e months of retroactive benefits for Courtnie, Ward filed another document with the social security administration on June 15, 1994, seeking support payments for Courtnie from the date of Christensen’s death. Ward’s efforts were ultimatel y successful and she received a total of $32,345 in benefits for Courtnie. The social security administration received a tip f rom Paul Christensen’s sister in 1995 and its subsequent investigation rev ealed Ward’s sworn statements declaring Gunn to be Courtnie’s father. Ward was c harged with two counts of social security fraud and two counts of making a fa lse statement to a government agency. Ward insisted on representing herself at t rial and the court appointed “stand-by counsel.” Ward’s request to have Christe nsen’s body exhumed to perform DNA testing was denied. Instead, the courtordered Gunn and Courtnie to undergo another blood test. This test concludedGunn was Courtnie’s father with a probability of paternity of 99.9999999 perce nt. The government’s expert-4-

testified at trial that, in his opinion, “Robert Gu nn is the biologic father of Courtnie Joy Christensen.” Record II at 55. A jury convicted Ward of all charges. She was sent enced to fifteen months’ imprisonment and thirty-six months’ supervi sed release and ordered to make restitution in the amount of $32,345. On appe al, she argues (1) there is no conclusive evidence she filed a false claim; (2) th e government intentionally destroyed evidence that was instrumental to her def ense; (3) the sentencing judge was biased; (4) the judge failed to provide her with a competency hearing; (5) the judge erroneously imposed special conditions to hersupervised release sentence.
II. We acknowledge that Ward is proceeding pro se on ap peal. When a plaintiff is proceeding pro se, we must construe pl eadings liberally, applying a less stringent standard than applicable to pleadings filed by lawyers. Whitney v. State of New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997). However, w e “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Id. at 1173-74.
III. Sufficiency of evidence Ward claims there is no conclusive evidence she fil ed false claims. She essentially attacks the fact that the district court denied her motion to exhume-5-

Christensen’s body for DNA testing and the fact that the government did not present canceled checks from the social security ad ministration. We construe this argument as a challenge to the sufficiency of the e vidence. In reviewing Ward’s challenge, we must determine whether any rational t rier of fact could have found the essential elements of the crime beyond a reason able doubt. In answering this question, we may neither weigh conflicting evidence nor consider the credibility of witnesses. United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997). Instead, we must consider the evidence and all reas onable inferences in the light most favorable to the government. See United States v. Reddeck , 22 F.3d 1504, 1507 (10th Cir. 1994). To prove Ward committed social security fraud, the government was required to prove she “ma[de] or cause[d] to be mad e any false statement or representation of a material fact for use in determ ining rights to payment under [the Federal Old-Age, Survivors, and Disability Insurance Benefits Act].” 42 U.S.C. § 408(a)(3). To establish Ward made a false statement to a government agency, the government was required to prove she “knowingly and willfully” “(1) falsif[ied], conceal[ed], or cover[ed] up by any tr ick, scheme, or device a material fact; (2) ma[de] any materially false, fictitious, or fraudulent statement or representation; or (3) ma[de] or use[d] any false w riting or document knowing the same to contain any materially false, fictitious, o r fraudulent statement or entry”-6-

in any matter within the jurisdiction of the United States government. 18 U.S.C. § 1001. We conclude there was ample evidence for the jury t o conclude Ward committed social security fraud and made false stat ements to a government agency. By representing Christensen was Courtnie’s father, Ward made a materially false representation to the government. The government was not, as Ward apparently contends, required to exhume Christ ensen’s body to prove he was not Courtnie’s father. The government relied i nstead upon blood tests to prove Gunn is Courtnie’s father. Moreover, the gov ernment was not required to present canceled checks to prove Ward received soci al security funds. The government proved Ward received social security fun ds by offering into evidence a certified social security payment history. See Record Supp. I, Exh. 23.

Discovery Ward argues the government intentionally destroyed evidence that was material to her defense when it destroyed her 1985- 1986 social security file (presumably her file from the State of Utah). This argument is without merit. There is no indication Ward was denied access to any document that would have been available if the file had not been destroyed. Copies of all relevant documents were available at trial. Further, there is no indication any destroyed-7-

document would have been favorable to her defense b ecause the file pertained to her earlier assertions that Gunn was Courtnie’s father. Ward entered into a stipulation with the government concerning the none xistence of the file. The stipulation stated: “Such parts of the file as have been located have been given to all parties. The non-existence of the file is not attributed to bad, evil or illegal motive or malicious intent on the part of any party to this action.” Record III at 91-92. Therefore, Ward cannot argue the government ’s failure to produce the destroyed file violated her rights.

Bias in sentencing Ward claims the sentencing court was biased, but do es not indicate how it was biased. Ward did not seek the judge’s recusal before sentencing. As evidenced by the record, the judge’s conduct during trial was proper and he based the sentence on information in the presentence repo rt and applicable sentencing guidelines. See United States v. Lowe , 106 F.3d 1498, 1504 (10th Cir.), cert. denied 117 S. Ct. 2494 (1997) (no bias where judge based sentence on reliable, undisputed information in presentence report); United States v. Gigax , 605 F.2d 507, 514 (10th Cir. 1979) (judge’s comments during sentencing did not demonstrate bias).-8-

Competency hearing Ward complains the court failed to conduct a compet ency hearing. A trial court need not conduct a competency hearing when th ere has been only minimal or no evidence of incompetence. In reviewing wheth er the trial court should have held a competency hearing, we must determine “‘whet her a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.’” United States v. Gutierrez-Hermosillo , 142 F.3d 1225, 1233 (10th Cir. 1998) (quoting United States v. Crews , 781 F.2d 826, 833 (10th Cir. 1986)). To raise a substantial questionrequiring a competency hearing there must be some evidence to create doubt on the issue. Merely raising the issue is insufficient. Gutierrez-Hermosillo , 142 F.3d at 1233. The Supreme Court has described what evidence trigg ers the need for a competency hearing: “evidence of a defendant’s ir rational behavior, his demeanor at trial, and any prior medical opinio n on competence to stand trial are all relevant in determining whet her further inquiry is required, but . . . even one of these factors st anding alone may, in some circumstances, be sufficient.” Castro v. Ward , 138 F.3d 810, 818 (10th Cir. 1998) (quoting Drope v. Missouri , 420 U.S. 162, 180 (1975)). We have reviewed the entire record on appeal and co nclude there is no indication the court should have experienced doubt concerning Ward’s competency to stand trial. Ward was lucid during t rial. She filed numerous-9-

pretrial motions, argued her motions to the court, and cross-examined several witnesses. We find no error in the court’s failure to conduct a competency hearing.

Special conditions to supervised release Ward contends the district court erroneously impose d special conditions to her supervised release sentence. We review the dis trict court’s imposition of conditions of supervised release for abuse of discretion. See United States v. Pugliese , 960 F.2d 913, 915 (10th Cir. 1992). The court or dered the following conditions: 1. The defendant shall participate in a mental heal th treatment program under a co-payment plan, as directed by the probation office.2. The defendant shall maintain full-time verifiabl e employment or participate in academic or vocational development throughout the term of supervision as deemed approp riate by the probation office. 3. The defendant shall not associate with individua ls who are members or associates of the House of Chaney. Record I, Doc. 61 at 5. Ward did not object to the se conditions during sentencing. Without making a specific argument challenging each specific condition, Ward generally argues the special conditions to hersupervised release were wrongfully imposed. However, since we easily concl ude the court did not abuse2 The House of Chaney has been described by the med ia as a “‘spiritual

family’ of about 10 ex-communicated Mormons who liv e in the Utah County area.” Tom Zoellner, Woman Gets 15 Months for Social Security Fraud , S ALT L AKE T RIB ., Sept. 6, 1997, at D5. Apparently, one of the gr oup’s beliefs is that girls should be married when they begin to menstruate. Stephen Hunt, Girl Says Dad Forced Her To Perform Sex Group’s Leader May Face Trial , S ALT L AKE T RIB ., June 29, 1996, at E1. The House of Chaney leade r, John Perry Chaney, was married to Ward’s then fourteen-year-old daught er Leslie. He was convicted in state court in June 1997 for arranging the marri age of his own thirteen-year-old daughter to a forty-eight-year-old follower. Stephen Hunt, Mother Guilty of Social Security Fraud , S ALT L AKE T RIB ., June 28, 1997, at B2. -10- its discretion by requiring her to participate in amental health treatment plan and maintain full-time employment, we focus our discuss ion on the condition that she not associate with individuals who are members or a ssociates of the House of Chaney. 2 The sentencing court generally enjoys broad discret ion in setting conditions of supervised release. See United States v. Prendergast , 979 F.2d 1289, 1292 (8th Cir. 1992); United States v. Showalter , 933 F.2d 573, 574 (7th Cir. 1991). However, a special condition of supervised release must (1) be reasonably related to (a) the nature and circumstances of the offense and the history and characteristics of the defendant, (b) affording ade quate deterrence to criminal conduct; or (c) providing the defendant with needededucation or vocational training, medical care, or other correctional treat ment; (2) “involve[] no greater deprivation of liberty than is reasonably necessary ” to further these goals, and (3) be “consistent with any pertinent policy statements issued by the Sentencing-11-

Commission pursuant to 28 U.S.C. 994(a).” 18 U.S.C. 3583(d). See United States v. Edgin , 92 F.3d 1044, 1048-49 (10th Cir. 1996), cert. denied 117 S. Ct. 714 (1997). As long as the special condition fulfi lls these statutory requirements, “[a] district court may include conditions that res trict fundamental rights, such as freedom of speech and freedom of association, altho ugh in such cases we must review the restrictions with particular care.” United States v. Hughes , 964 F.2d 536, 542 (6th Cir. 1992) (citing United States v. Peete , 919 F.2d 1168, 1181 (6th Cir. 1990)). In Showalter , the court required defendant, as a special condit ion of supervised release, to stop associating with the or ganization known as the skinheads and all other neo-Nazi organizations. Th e district court explained the restriction was necessary because “those groups emb race violence and the threat of violence as a method of advancing their views,” and concluded defendant’s association “would create a high likelihood that yo u would be drawn into that same behavior.” 933 F.2d at 575. See United States v. Turner , 44 F.3d 900, 903 (10th Cir. 1995) (sentencing court did not abuse di scretion by imposing special condition that defendant-abortion clinic protester not “harass, intimidate or picket in front of any gynecological or abortion family pl anning services center”); United States v. Bortels , 962 F.2d 558, 559-60 (6th Cir. 1992) (sentencing court did not abuse discretion in imposing special condit ion that defendant not associate-12-

with her fiancé for one year since defendant was co nvicted of assaulting, resisting, or interfering with a United States Deputy Marshal in connection with a high-speed chase to help avoid the capture of her f iance). In Edgin , 92 F.3d 1044 , this court considered a claim that the district court erred by imposing a special condition of supervisedrelease that prohibited defendant from associating with his son. Since the district court failed to state its reasoning for imposing the condition, we remanded w ithout determining whether the court abused its discretion in imposing the con dition. We noted the court had imposed the condition after resolving all objection s to the presentence report and after permitting defendant to make a final statemen t, and noted the condition violated defendant’s fundamental right to maintain a familial relationship with his

son. Ward’s relationship with members of the House of Ch aney was not discussed during her sentencing hearing before the court announced its intention to impose the special condition. The court did notmake any findings concerning whether association was harmful to Ward or would cr eate a high likelihood of recidivism. The court did not relate Ward’s associ ation with members of the House of Chaney to the instant charges. In fact, f rom the record it appears her association began after she committed the instant offenses. Since this sp ecial condition restricts Ward’s right to free associatio n and arguably places limitations-13-

on her right to maintain a relationship with her hu sband, who is also a member of the House of Chaney, the district court should have stated its reasoning for imposing this condition. As in Edgin , the court imposed the special condition “at the close of the sentencing hearing without making factual findings or providing any reasons in support.” 92 F.3d at 1049.
IV. We AFFIRM Ward’s convictions and REMAND for furtherfindings on imposition of the special condition of supervised r elease that prohibits Ward from associating with members of the House of Chaney. Entered for the Court Mary Beck Briscoe Circuit Judge