United States v. 2020-11-13 | 18-50120 | USA V. PATRICK BACON | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PATRICK JOHN BACON,

Defendant-Appellant.

No. 18-50120

D.C. No. 5:17-cr-00159-PA-1

ORDER

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Argued and Submitted January 6, 2020
San Francisco, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,
*
District
Judge.

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, 2020 WL 6498258 (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.

*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED

NOV 13 2020

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

2
Karim’s testimony was admissible (reliable) pursuant to Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as
articulated in our per curiam opinion, United States v. Ray, 956 F.3d 1154 (9th Cir.
2020), vacated in part by Bacon, 2020 WL 6498258. 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, 2020
WL 6498258, at *4.
VACATED AND REMANDED.