                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 14 2014

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

UNITED STATES OF AMERICA,                        No. 12-30397

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00036-SEH-1

  v.
                                                 MEMORANDUM*
EDDY DEAN BULLCALF,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted March 7, 2014
                                Portland, Oregon

Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge.**

       Eddy Dean Bullcalf appeals his convictions on three counts of aggravated

sexual abuse, 18 U.S.C. §§ 1153(a) and 2241(c), and one count of abusive sexual



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
contact, 18 U.S.C. §§ 1153(a) and 2244(a)(1). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      At trial, Bullcalf’s attorney attempted to question FBI Special Agent Quinlan

in order to impeach S.F., a trial witness, with extrinsic evidence of S.F.’s prior

inconsistent statements. The district court cut short trial counsel’s line of questions

because the court did not think the proper foundation had been laid for Agent

Quinlan’s testimony. This was error. This court has “expressly recognized that the

foundational prerequisites of Rule 613(b) require only that the witness be

permitted--at some point--to explain or deny the prior inconsistent statement.”

United States v. Young, 86 F.3d 944, 949 (9th Cir. 1996). S.F.’s stated inability to

recall her interview with Agent Quinlan constituted a denial. See Williamson v.

United States, 310 F.2d 192, 199 (9th Cir. 1962) (“[T]he answer of a witness that

he does not remember having made a prior inconsistent statement is as adequate a

foundation as a flat denial.”).

      However, this error does not warrant setting aside Bullcalf’s convictions.

C.O.C., the victim, gave detailed testimony regarding her abuse at Bullcalf’s

hands, and T.W.T.’s and L.L.’s testimony established a similar pattern of abuse. In

light of this convincing evidence, we are satisfied beyond a reasonable doubt that

the jury would have convicted Bullcalf even if S.F.’s testimony was completely


                                           2
discredited. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (“The correct

inquiry is whether, assuming that the damaging potential of the cross-examination

were fully realized, a reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt.”).

      We have considered Bullcalf’s remaining arguments and conclude they are

meritless.

      AFFIRMED.




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