United States v. Patrick Bacon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50120

Plaintiff-Appellee,

D.C. No.

v. 5:17-cr-00159-PA-1

PATRICK JOHN BACON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted En Banc October 29, 2020*

San Francisco, California

Filed November 5, 2020

Before: Sidney R. Thomas, Chief Judge, and Richard A.

Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo

M. Callahan, Mary H. Murguia, Andrew D. Hurwitz,

John B. Owens, Eric D. Miller, Bridget S. Bade and

Kenneth K. Lee, Circuit Judges.

Opinion by Chief Judge Thomas

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 UNITED STATES V. BACON

SUMMARY**

Criminal Law

The en banc court remanded to the three-judge panel for

a determination of the proper remedy in this criminal case in

which the three-judge panel held that the district court had

employed the incorrect legal standard for relevance under

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), and Federal Rule of Evidence 702, when it excluded

testimony from the defendant’s proposed expert.

The Court voted to rehear the case en banc to consider

what the proper remedy is on appeal when this court

concludes that a district court has erred under Daubert by

admitting or excluding expert testimony on one ground, but

this Court cannot tell from the record whether the admission

or exclusion was nevertheless correct on other grounds.

Recognizing that there are different circumstances

involved in every case, the en banc court concluded that a

bright-line rule requiring a specific remedy is inappropriate.

Applying 28 U.S.C. § 2106, the en banc court held that when

a panel of this Court concludes that the district court has

committed a non-harmless Daubert error, the panel has

discretion to impose a remedy as may be just under the

circumstances. Restoring Daubert errors to the usual realm

of appellate review and remedy, the en banc court wrote that

circumstances may require a new trial in some instances and

dictate a limited remand in others. The en banc court

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BACON 3

overruled this Court’s prior case law to the extent it conflicts

with this opinion.

COUNSEL

Shaun Khojayan, Law Offices of Shaun Khojayan &

Associates P.L.C., Los Angeles, California, for Defendant-

Appellant.

Nicola T. Hanna, United States Attorney; L. Ashley Aull,

Chief, Criminal Appeals Section; Shawn T. Andrews, United

States Attorney; Violent and Organized Crime Section,

United States Attorney’s Office, Los Angeles, California; for

Plaintiff-Appellee.

Robert A. Olson, Greines Martin Stein & Richland LLP, Los

Angeles, California, for Amici Curiae Federation of Defense

and Corporate Counsel, Association of Southern California

Defense Counsel, and Association of Defense Counsel of

Northern California.

OPINION

THOMAS, Chief Judge:

We voted to rehear this case en banc to consider what the

proper remedy is on appeal when we conclude that a district

court has erred under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or

excluding expert testimony on one ground, but when we

cannot tell from the record whether the admission or

exclusion was nevertheless correct on other grounds.

4 UNITED STATES V. BACON

Recognizing that there are different circumstances

involved in every case, we conclude that a bright-line rule

requiring a specific remedy is inappropriate. Instead, each

panel should fashion a remedy “as may be just under the

circumstances.” 28 U.S.C. § 2106. The remedy may include

remanding for a new trial or remanding for the district court

to first determine admissibility, then requiring a new trial

only if that admissibility determination differs from that in

the first trial. We remand this case to the three-judge panel

so that the panel may, in its discretion, determine the

appropriate remedy in this case.

I

The facts of the case are detailed in the panel opinion, so

we need not recount them here in any detail. See United

States v. Ray, 956 F.3d 1154, 1157–58 (9th Cir. 2020) (per

curiam). In brief, the district court excluded testimony from

Bacon’s proposed expert on the ground that the testimony

would be irrelevant under Daubert and Federal Rule of

Evidence 702. Id. at 1158. Because the district court’s

decision to exclude the testimony “start[ed] and end[ed] with

the question of relevance,” the court did not evaluate the

expert’s reliability. Id. at 1158–60; see also United States v.

Redlightning, 624 F.3d 1090, 1111 (9th Cir. 2010) (“The trial

judge must perform a gatekeeping function to ensure that the

expert’s proffered testimony is both reliable and relevant.”).

On appeal, the three-judge panel held, in a per curiam

opinion, that the district court had employed the incorrect

legal standard for relevance under Daubert and Rule 702

when it excluded the testimony. Ray, 956 F.3d at 1159–60.

The panel further determined that the error was not harmless.

Id. In ordering a remedy for the error, the panel concluded

UNITED STATES V. BACON 5

that it was bound by circuit precedent to vacate the conviction

and remand for a new trial. Id. at 1160–61 (citing United

States v. Christian, 749 F.3d 806, 814 (9th Cir. 2014)).

However, the entire panel joined a concurring opinion,

authored by Judge Watford, urging that we reconsider our

precedent and “conditionally vacate the judgment and remand

to the district court with instructions to determine whether the

disputed expert testimony was admissible pursuant to the

requirements of Rule 702 and Daubert.” Ray, 956 F.3d

at 1161 (Watford, J., concurring) (quoting Estate of Barabin

v. AstenJohnson, Inc. (“Barabin II”), 740 F.3d 457, 471 (9th

Cir. 2014) (en banc) (Nguyen, J., concurring in part and

dissenting in part)). The concurrence noted that the contested

expert testimony might again be excluded, this time on

reliability grounds, in which case the evidence in the second

trial would be the same as the evidence in the first trial. Id.

(“If that occurs, why in the world should the court hold a new

trial . . . ?”).

Upon an affirmative vote of a majority of the non-recused

active judges, we agreed to rehear this case en banc. United

States v. Ray, 974 F.3d 959 (9th Cir. 2020).

II

The panel correctly concluded that it was bound by circuit

precedent in remanding for a new trial. However, our

precedents also demonstrate an enduring disagreement within

our Court over the mandatory-retrial rule.

In Mukhtar v. California State University, Hayward,

299 F.3d 1053, 1068 (9th Cir. 2002), amended by 319 F.3d

1073 (9th Cir. 2003), we held that the non-harmless

6 UNITED STATES V. BACON

admission of testimony without the proper Daubert reliability

determination required vacating for a new trial. Following an

unsuccessful petition for rehearing and rehearing en banc, in

which the petitioners argued that the panel should instead

remand for an evidentiary hearing, the panel amended its

opinion to state:

To remand for an evidentiary hearing

post-jury verdict undermines Daubert’s

requirement that some reliability

determination must be made by the trial court

before the jury is permitted to hear the

evidence. Otherwise, instead of fulfilling its

mandatory role as a gatekeeper, the district

court clouds its duty to ensure that only

reliable evidence is presented with impunity.

A post-verdict analysis does not protect the

purity of the trial, but instead creates an undue

risk of post-hoc rationalization. This is hardly

the gatekeeping role the Court envisioned in

Daubert and its progeny.

Mukhtar v. Cal. State Univ., Hayward, 319 F.3d 1073, 1074

(9th Cir. 2003).

Judge Reinhardt wrote a dissent from the denial of

rehearing en banc in Mukhtar, in which ten additional judges

joined. Id. at 1075–78 (Reinhardt, J., dissenting from denial

of reh’g en banc). The dissent argued, among other things,

that the panel should have conditionally vacated the judgment

pending a limited remand on the admissibility of the expert

testimony. Id. at 1077.

UNITED STATES V. BACON 7

We next considered this issue in Barabin v.

AstenJohnson, Inc. (“Barabin I”), 700 F.3d 428, 433 (9th Cir.

2012). The panel in Barabin I concluded that Mukhtar

required remanding for a new trial when the district court had

committed a non-harmless error in admitting evidence under

Daubert. 700 F.3d at 433. Judge Graber, joined by Judge

Tashima, agreed that circuit precedent required a new trial,

but wrote separately to disagree with Mukhtar and urge that

the judgment be conditionally vacated and remanded to first

determine whether the testimony was admissible. Id. at 434

(Graber, J., concurring) (“If the court finds that the expert

testimony is, indeed, reliable, what purpose is served by

empaneling a new jury and conducting another lengthy trial

the outcome of which likely will be identical to the one

already concluded?”).

We reheard Barabin I en banc, and a six-judge majority

reaffirmed the Mukhtar rule that “an erroneous admission of

expert testimony, absent a showing the error was harmless,

requires a new trial.” Barabin II, 740 F.3d at 467. Judge

Nguyen, joined by four other judges, dissented in part,

writing that “[t]here is no reason to require a new trial

whenever a district court fails to conduct a Daubert analysis,

regardless of whether on remand the district court would

determine that disputed expert testimony is relevant and

reliable.” Id. at 468 (Nguyen, J., concurring in part and

dissenting in part). The partial dissent again urged that the en

banc court conditionally vacate and remand so that the district

court could first determine admissibility. Id. at 471. If the

district court were to determine that the testimony was

admissible, the district court could reinstate the verdict. Id.

If the testimony were held inadmissible, the partial dissent

said, then the district court should ascertain whether the

8 UNITED STATES V. BACON

erroneous admission had prejudiced the defendants. Id. Only

if it had should the court order a new trial. Id.

Shortly afterwards, another panel extended the

mandatory-retrial rule to criminal cases where expert

testimony pertaining to a diminished capacity defense had

been excluded under an incorrect legal standard. Christian,

749 F.3d at 813–14 & n.4. The panel in Christian declined to

determine whether the testimony should have been admitted,

leaving that to the district court to determine in the first

instance. Id. at 813. However, although it was remanding to

allow the district court to determine admissibility, the panel

applied the mandatory-retrial rule, vacating the conviction

and ordering a new trial. Id. at 813–14.

Applying these precedents, the panel in this case properly

concluded that binding circuit precedent required a retrial.

See Ray, 956 F.3d at 1160–61. But, sitting en banc, we are

free to reconsider that rule.

III

As the history of our divided opinions indicates, there is

considerable force behind both the argument that requiring

retrial promotes Daubert’s gatekeeping function, Mukhtar,

319 F.3d at 1074, and the argument that requiring retrial can

waste judicial resources and unnecessarily treats Daubert

errors differently from other evidentiary errors, Barabin II,

740 F.3d at 470–71 (Nguyen, J., concurring in part and

dissenting in part). Moreover, every case presents different

circumstances for the reviewing court to consider. Some

cases involve extensive Daubert hearings; others involve

limited hearings, or no hearings at all. The district court

findings differ, with some courts expressing alternative bases

UNITED STATES V. BACON 9

for the evidentiary decisions. Some cases involve the

erroneous admission of evidence; others involve the

erroneous exclusion of evidence. Mukthar and Barabin, for

example, both concerned a district court’s improper

admission of evidence after failing to make necessary

findings. The Mukhtar panel concluded that a limited remand

for an evidentiary hearing would create an “undue risk of

post-hoc rationalization.” 319 F.3d at 1074. In Christian,

however, we held that the district court improperly excluded

expert testimony by applying the wrong standard, remanded

for the application of the correct standard, but ordered a new

trial regardless of the outcome of the re-examination.

749 F.3d at 813–14.

On the other hand, we have also held that “[i]f the

reviewing court decides the record is sufficient to determine

whether expert testimony is relevant and reliable, it may

make such findings,” and that if such a finding leaves

insufficient evidence, the court “may direct entry of judgment

as a matter of law.” Barabin II, 740 F.3d at 467.

As in Christian, the case before us involves the exclusion

of testimony without an express evaluation of its reliability,

and all three judges on the panel concluded that conditionally

vacating the verdict for an evidentiary hearing would be the

“sensible procedure,” Ray, 956 F.3d at 1161 (Watford, J.,

concurring), in part noting that the government had raised

“very real reliability issues” with the proffered expert

testimony, id. at 1160 (per curiam).

While some logic may support adopting a bright-line rule

either requiring a new trial or requiring a limited remand, we

are mindful that “[t]he life of the law has not been logic; it

has been experience.” Oliver Wendell Holmes, Jr., The

10 UNITED STATES V. BACON

Common Law 1 (1881). Different circumstances may require

different remedies.

Fortunately, we are not presented with an inflexible

binary choice between competing remedies. The United

States Code provides:

The Supreme Court or any other court of

appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment,

decree, or order of a court lawfully brought

before it for review, and may remand the

cause and direct the entry of such appropriate

judgment, decree, or order, or require such

further proceedings to be had as may be just

under the circumstances.

28 U.S.C. § 2106.

Thus, applying section 2106, we hold that when a panel

of this Court concludes that the district court has committed

a non-harmless Daubert error, the panel has discretion to

impose a remedy “as may be just under the circumstances.”

Id. Circumstances may require a new trial in some instances;

circumstances may dictate a limited remand in others. Of

course, the discretion of a panel is not unfettered. The normal

rules of appellate review of evidentiary decisions still apply.

And nothing in our decision removes Daubert’s important

gatekeeping function. But our holding today restores

Daubert errors to the usual realm of appellate review and

remedy, rather than keeping them in a separate, special

category.

UNITED STATES V. BACON 11

To the extent that our prior case law—such as Mukhtar,

Barabin II, and Christian—conflicts with this opinion, we

overrule it. We remand this case to the three-judge panel to

apply its discretion in determining the appropriate remedy.

REMANDED to the three-judge panel.