UNITED STATES of America, Plaintiff-Appellee, v. Patrick John BACON, Defendant-Appellant.
Decided: November 13, 2020
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,* District Judge.
Shawn T. Andrews, Esquire, Assistant U.S. Attorney, DOJ-USAO, Los Angeles, CA, Bram Alden, L. Ashley Aull, Assistant U.S. Attorney, Sue Bai, Assistant U.S. Attorney, DOJ - Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee Shaun Khojayan, Esquire, Trial Attorney, Law Offices of Shaun Khojayan & Assoc., Los Angeles, CA, for Defendant-Appellant Robert Axel Olson, Esquire, Attorney, Greines, Martin, Stein & Richland LLP, Los Angeles, CA, for Amici Curiae Federation of Defense and Corporate Counsel, Association of Southern California Defense Counsel, Association of Defense Counsel of Northern California and Nevada
This case was reheard en banc by order of this court. Dkt No. 72. Consistent with the opinion of the en banc court, United States v. Bacon, No. 18-50120, 979 F.3d 766 (9th Cir. Nov. 5, 2020) (en banc), we remand this case to the district court with the following instructions. We instruct the district court to conduct whatever proceedings it deems appropriate to determine whether Dr. Karim's testimony was admissible (reliable) pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as articulated in our per curiam opinion, United States v. Ray, 956 F.3d 1154 (9th Cir. 2020), vacated in part by Bacon, 979 F.3d 766. If the district court finds that Dr. Karim's testimony was admissible in accord with the proper method of evaluation, we direct the court to grant Bacon a new trial. If the district court finds that Dr. Karim's testimony should be excluded in accord with the proper method of evaluation, we direct the court to reinstate Bacon's conviction and sentence. We find this remand “just under the circumstances.” 28 U.S.C. § 2106; Bacon, 979 F.3d at 770.
VACATED AND REMANDED.
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