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

### NOV 7 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. ALLEN J. (a juvenile), Defendant-Appellant. No. 96-2276

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-364-LH) Sharon R. Kimball (John J. Kelly, United States Att orney, with her on the brief), Executive Assistant United States Attorney, Albuque rque, New Mexico, for Plaintiff-Appellee. Judith A. Rosenstein, Assistant Federal Public Defe nder, Albuquerque, New Mexico, for Defendant-Appellant.
Before SEYMOUR, Chief Judge, and PORFILIO and BRORBY , Circuit Judges.
BRORBY , Circuit Judge.-2-

Allen J. appeals his adjudication of juvenile delin quency in the United States District Court for the District of New Mexic o. In a non-jury trial held on September 11, 12, and 16, 1996, the district court adjudged Allen J. a juvenile delinquent pursuant to the Federal Juvenile Delinqu ency Act, 18 U.S.C. § 5031, et seq. , after finding he had committed Aggravated Sexual Abuse in violation of 18 U.S.C. §§ 2241(a), and 2246(2)(A) by knowingly usin g force to engage in a sex act with a juvenile. The case was in federal courtbecause both Allen J. and the victim are Indians and because the incident took pl ace within the Navajo Nation Indian Reservation in New Mexico. See 18 U.S.C. § 3231. The district court placed Allen J. on probation until he reaches the a ge of twenty-one and required, among other things, completion of sex offender and substance abuse treatment at a youth facility.
On May 29, 1996, the victim, a twelve-year-old fema le, graduated from the fifth grade. That evening her family had a celebra tion dinner at their home near Shiprock, New Mexico. After dinner, the victim del ivered some aspirin to her grandmother, who lived next door. As she was retur ning, she met Allen J., then fifteen, a cousin of hers who lived in the house on the opposite side of the grandmother's residence from the victim's house. A fter a short discussion, Allen J. grabbed the victim by the wrist and forced her a way from the houses to a-3-

nearby abandoned car. The trial court found that a fter a brief struggle, Allen J. raped the victim.
The only issue Allen J. raises on appeal is whetherthe trial court erred in finding the victim competent to testify.
Because district courts have the advantage of direc t observation of witnesses, this court defers to their determination s regarding the competency of witnesses to testify. District courts have "broad discretion in determining the competency of a witness to testify, and [their] dec ision[s] will not be reversed in the absence of an abuse of discretion." United States v. Gomez , 807 F.2d 1523, 1527 (10th Cir. 1986).
The competency of witnesses to testify in federal c riminal trials is governed by Fed. R. Evid. 601. See United States v. Haro , 573 F.2d 661, 667 (10th Cir.), cert. denied, 439 U.S. 851 (1978). Rule 601 establishes a pres umption "[e]very person is competent to be a witness." Fed. R. Evid . 601. This means there is no minimum or baseline mental capacity requirements wi tnesses must demonstrate before testifying. See Fed. R. Evid. 601 advisory committee's note. Inde ed, the drafters of Rule 601 considered mental capacity notto be a question of1 The statute applies only to children who have bee n "[a] victim of a crime

of physical abuse, sexual abuse, or exploitation" o r who have witnessed a crime committed against another. 18 U.S.C. § 3509(a)(2)( A). This victim qualifies. -4- competence, but to be a question "particularly suit ed to the [trier of fact] as one of weight and credibility." Id.
In addition to the general presumption of competenc y found in Rule 601, there is a specific statutory presumption children 1 are competent to testify. 18 U.S.C. § 3509(c)(2). The statutory scheme places aheavy burden on a party seeking to have a child declared incompetent to tes tify. A court may only conduct a competency examination of a child witness upon su bmission of a written motion by a party offering compellingproof of incompetency. 18 U.S.C. § 3509(c)(3), (4). Even if this hurdle is met and a competency e xamination is held, the purpose of the examination is only to determine if the chil d is capable of "understanding and answering simple questions." 18 U.S.C. § 3509( c)(8). Therefore, Allen J. has a difficult standard to meet in this case. He must demonstrate the district court abused its discretion in allowing the testimo ny of a child victim — a decision the rules strongly favor.
Prior to trial, Allen J. filed a motion challenging the victim's competence to testify and requesting a competency examination. I n the motion, he offered as-5-

proof of incompetency two documents indicating "the possibility that [the victim] may suffer from Fetal Alcohol Syndrome or Fetal Alc ohol Exposure" and "mild retardation and learning disabilities." The first document, a "6-9 Year EPSDT Tracking Form," was completed on December 30, 1992, almost four years before the trial in this case. It states, without attribu tion to the source of the information, the victim "apparently has learning di sabilities [and] had to repeat 1st grade" and the victim's mother drank alcohol fr equently during her pregnancy with the victim. The second document is a report b y a pediatrician, dated October 9, 1993, again completed well before the date of th e trial, based on an evaluation of the victim. In it, the doctor mentioned the vic tim suffers from "developmental delay and mild mental retardation" but stated she c ould not conclude those problems resulted from Fetal Alcohol Syndrome.
The district court judge did not rule on the motion before the trial, but raised it immediately before the start of the prose cution's case. At that point, the court indicated it did not find any compelling reas on to hold a competency examination based on the information contained in A llen J.'s motion. The court reasoned even if the thirteen-year-old victim had aminor learning disability, she would be at least as capable of testifying as much younger children who had testified in previous cases before the court. Coun sel for Allen J. then suggested a-6-

competency examination was necessary because the vi ctim had poor verbal skills and could not accurately relate what took place the evening of the alleged rape. The court asked the government's case agent, who ha d interviewed the victim, if he had any difficulty understanding her. The case agent stated he did not have any problems understanding her. The court denied A llen J.'s motion for an examination.
Allen J. states the test for determining the compet ency of a child witness is found in United States v. Spoonhunter , 476 F.2d 1050 (10th Cir. 1973). In Spoonhunter , this Circuit applied the test for determining the competency of a child witness established by the Supreme Court in Wheeler v. United States , 159 U.S. 523 (1895). In that case, the Court held comp etency "depends on the capacity and intelligence of the child, [the child' s] appreciation of the difference between truth and falsehood, as well as of [the chi ld's] duty to tell the former." Id . at 524. This determination was to be left primar ily in the hands of the trial courts. Id. at 524-25. The Court, however, warned trial court s to take care when excluding witnesses, in order to avoid "staying the hand of justice." Id . at 526.2Rule 601 was enacted in 1975, and § 3509 was enac ted in 1990. -7- Both Wheelerand Spoonhunter , however, pre-date the enactment of Fed. R. Evid. 601 and 18 U.S.C. § 3509. 2 For this reason, the Wheelertest this court has relied upon for years no longer completely states t he applicable standard for determining the competency of a child witness, alth ough it may inform any examinations taking place pursuant to 18 U.S.C. § 3 509(c) and may help explain the type of evidence necessary to demonstrate a compelling reason for such an examination.
Allen J. argues the district court "erred in findin g [the victim] competent to testify because the court never determined [the vic tim] understood the difference between the truth and falsehood, and the consequenc es of falsehood, and what was required by the oath", as required by Spoonhunter
. See 476 F.2d at 1054. Upon enactment of § 3509, the rules changed. Now c hildren are presumed competent and the party seeking to prevent a child from testifying has the burden of providing a compelling reason for questioning th e child's competence. 18 U.S.C. § 3509(c)(2), (4).
We agree with the district court's conclusion that the evidence offered by Allen J. in his Motion to Examine Child Witness forCompetence did not-8-

constitute a "compelling reason" to hold a § 3509(c ) competency examination. To counter the presumption favoring competency, Allen J. asserted the victim suffers mild mental retardation, possibly due to Fetal Alco hol Syndrome, which caused her to repeat first grade. As the district court c orrectly pointed out, even if the victim only had the mental development of a much yo unger child, she would still be competent to testify. The evidence offered by A llen J. did not begin to show the victim had such severe problems she could not " understand and answer simple questions" 18 U.S.C. § 3509(c)(8), or "underst[and] the difference between truth and falsehood, and the consequences of falsehood, a nd what was required by the oath," Spoonhunter , 476 F.2d at 1054.
When the victim was called to testify, the court as ked her a series of questions seeking to confirm she understood the imp ortance of the oath. These questions included: "Do you understand what it is to tell the truth?" and "Do you know the difference between the truth and a lie?" The victim did not respond to the judge's questioning. (I The court then asked the prosecutor to try question ing the witness. The prosecutor began with simple ques tions ("[W]hat is your last name?", "How old are you?", and "Where do you live? "), which the victim answered. After about thirty questions along these lines, almost all of which the victim was able to answer correctly, the prosecutorshifted to questions relating to3 This initial questioning of the victim, during wh ich the court satisfied

itself the victim understood the need to be truthfu l in her statements, was not a competency examination pursuant to 18 U.S.C. §3509( c). Fed. R. Evid. 603 requires every witness to declare he or she will te stify truthfully. In addition to confirming for the court the victim understood the oath, the initial questioning of the victim also served "to awaken the witness' cons cience and impress the witness' mind with the duty to [testify truthfully]," as req uired by Rule 603. The type of questions asked by the prosecutor along this line, and the answers given by the victim, were comparable to examinations approved in Spoonhunter , 476 F.2d at 1054, and Wheeler , 159 U.S. at 524. For this reason, to the extent Allen J.'s argument may be construed to be an appeal based on Rule 603, we find the district court did not err and fully complied with the requirements of Rule 603. -9- the difference between the truth and lies. Among o ther questions, the prosecutor asked the victim if she understood she had promised to tell the truth in court, to which the victim responded affirmatively. After th is series of questions, which established the victim knew the difference between a truth and a lie, knew she was to tell the truth in court, and knew she would be punished if she told a lie, the court directed the prosecutor to proceed to the hea rt of her case. 3 Defense counsel objected repeatedly throughout this process and throughout the remainder of the victim's testimony.
Allen J. essentially bases his appeal on several in stances in the victim's testimony where she had difficulty answering questi ons. The victim did not respond to the trial judge's questioning. She gave wrong answers to some of counsel's questions ( e.g., she said she was eleven, when she was thirteen), a nd she-10-

gave nonsensical answers to others ( e.g. , she answered "true" to the question "is it good or bad to tell a lie?"). In addition, she app arently paused for long periods of time before answering some questions.
Any inconsistencies in the victim's story or proble ms with her testimony, however, raise questions of credibility, not compet ence. Allen J.'s argument boils down to an attack on credibility couched in terms o f competence. This court has rejected similar arguments before. See United States v. Cook, 949 F.2d 289, 293- 94 (10th Cir. 1991); United States v. Bedonie , 913 F.2d 782, 799-801 (10th Cir. 1990), cert. denied, 501 U.S. 1253 (1991). The credibility of a witne ss is a question to be determined by the trier of fact, notthis court. See Bedonie , 913, F.2d at 799.
Over one hundred years ago, the Supreme Court held it was proper for a five-year-old to give critical testimony in a capit al case. Wheeler , 159 U.S. at 524. Since that time, the trend in the law has bee n to grant trial courts even greater leeway in deciding if a witness is competen t to testify. See Cook, 949 F.2d at 293.-11-

We find nothing in the record demonstrating the dis trict court abused its discretion in permitting the victim in this case to testify. The decision of the district court is, therefore, AFFIRMED
.