United States v. Kevin Devereaux

MEMORANDUM

Kevin Devereaux appeals his jury conviction for aggravated sexual abuse, assault resulting in serious bodily injury, and burglary. We have jurisdiction under 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…