                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 13 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30112

              Plaintiff - Appellee,              D.C. No. 4:13-cr-00113-BMM-1

 v.
                                                 MEMORANDUM*
KEVIN J. DEVEREAUX,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                              Submitted July 9, 2015**
                                 Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

      Kevin Devereaux appeals his jury conviction for aggravated sexual abuse,

assault resulting in serious bodily injury, and burglary. We have jurisdiction under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                       1                                      14-30112
28 U.S.C. § 1291, and we affirm.

      Devereaux contends that the district court erred by posing a series of non-

substantive questions to a child witness at the beginning of her testimony before

the jury. Devereaux argues that the court’s questions amounted to a competency

examination, which may only be conducted outside the jury’s presence, 18 U.S.C.

§ 3509(c)(6). However, no competency examination took place. A child witness

“is presumed to be competent,” id. § 3509(c)(2), “[a] competency examination

regarding a child witness may be conducted by the court only upon written motion

and offer of proof of incompetency,” id. § 3509(c)(3), and “[a] competency

examination regarding a child may be conducted only if the court determines, on

the record, that compelling reasons exist,” id. § 3509(c)(4). None of those criteria

were met.

      The fact that the district court’s questions could have been asked during a

competency examination does not render them improper. The court was well

within its authority to pose the same questions as part of a non-standard oath or

affirmation, Fed. R. Evid. 603, and, as always, had broad authority to “examine a

witness” Fed. R. Evid. 614(b), as it did here. Kentucky v. Stincer, 482 U.S. 730

(1987), the principal authority upon which Devereaux relies, cuts firmly against his

position because, in that case, the Court expressly approved of the fact that

                                        2                                       14-30112
competency-related questions could have been, and were, repeated in open court

before the jury. See id. at 733-34, 740.

      Furthermore, even if the district court erred, and assuming that any error

would have required exclusion of the child witness’s testimony, we would still

affirm. The child witness’s testimony had no bearing whatsoever on Devereaux’s

conviction for aggravated sexual abuse, and Devereaux’s assault and burglary

convictions were supported by other substantial evidence, including the victim’s

testimony, the victim’s daughter’s testimony, and the testimony of emergency

room professionals who treated the victim. As a result, any alleged error was

harmless. See Arnold v. Runnels, 421 F.3d 859, 867 (9th Cir. 2005).

      AFFIRMED.




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