United States of America v. Shahriyar Bolandian; Kevan Sadigh

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
SHAHRIYAR BOLANDIAN; KEVAN
SADIGH,
Defendants-Appellees.
No. 17-50373
D.C. No.
2:15-cr-00465-TJH-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted May 17, 2019
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON, ** District Judge.
The United States retained Michael G. Mayer (“Mayer”) as a securities
expert to analyze the trading patterns of Defendants Shahriyar Bolandian and
Kevan Sadigh in this insider trading action. The government appeals the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
JUN 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s order granting Defendants’ motion in limine and excluding two opinions in
Mayer’s expert report on the ground that Mayer was not qualified under Federal
Rule of Evidence 702. We reverse and remand.
The parties agree that Mayer is qualified to testify to the factual background
in his report, which explains options trading and call options and provides a factual
summary of Defendants’ transactions based on his review of trade blotters and
other records of Defendants’ accounts. At issue are two opinions in the report:
Opinion 5.3 (“Opinion 3”) and Opinion 5.5 (“Opinion 5”).
Opinion 3 is titled: “There are various ways in which a trader can profit by
trading with acquisition-related MNPI [(material non-public information)].” At
oral argument, the government contended that provisions of Opinion 3 that address
the “probability” or “likelihood” that MNPI would influence a trader’s securities
choices are properly excludable.1 However, Opinion 3 includes descriptions of
other topics that reflect objective facts about options trading and call options and
do not contain Mayer’s opinion on subjective topics, such as rationale or intent.
Opinion 5 concludes that Defendants’ trades “appear consistent with what a
trader would do if they were trying to take advantage of MNPI” and includes 14
sub-opinions. The government is explicitly not appealing the district court’s
1 This language falls within sections 5.3.1.1 (“Option Leverage and Expected Profit
Associated with the Securities Choices”) and 5.3.1.2 (“Factors that Influence the
Level of Profit”) of Opinion 3.

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exclusion of the overall conclusion in Opinion 5. Nor is the government appealing
the exclusion of all sub-opinions in Opinion 5. Rather, the government only
appeals the exclusion of sub-opinions 1–4, 6–8, and 10–13, and the government
notes that it only plans to use sub-opinions 6, 7, 10, and 11 to rebut defense claims
if raised.
The district court excluded Opinions 3 and 5 in their entirety in a one-
sentence order granting Defendants’ motion in limine. The district court’s order
stated, “Although the opinions are relevant, the Court finds, pursuant to Fed. R.
Evid. 702, that Michael Mayer is not qualified to render the opinions that are the
subject of this motion.”
We have jurisdiction over the government’s interlocutory appeal pursuant to
18 U.S.C. § 3731 because the government submitted a timely certification signed
by the Acting United States Attorney, who had authority to properly certify the
appeal. Cf. United States v. Weyhrauch, 548 F.3d 1237, 1241–42 (9th Cir. 2008),
(holding that the Attorney General can properly certify an appeal in the absence of
a United States Attorney or acting United States Attorney overseeing a
prosecution), vacated and remanded on other grounds, 561 U.S. 476 (2010) (per
curiam).
We review the district court’s exclusion of Opinions 3 and 5 under Rule 702
for abuse of discretion. See United States v. Wells, 879 F.3d 900, 914 (9th Cir.

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2018). We conclude that the district court abused its discretion by granting
Defendants’ motion in limine. The district court did not give any reasons for how
it applied Rule 702 to conclude that Opinions 3 and 5 were relevant, but that
Mayer was not qualified. This conclusion is not supported by the record, and
Defendants did not dispute Mayer’s qualifications as an expert to testify about
factual information, such as options trading, call options, and Defendants’ trading
records. See City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1069 (9th Cir.
2017) (holding that “[the district court’s] failure to make any findings regarding
the efficacy of [the] expert opinions constituted an abdication of the district court’s
gatekeeping role, and necessarily an abuse of discretion”).
To the extent that the provisions of Opinion 3 at issue and sub-opinions 1–4,
6–8, and 10–13 of Opinion 5 consist of such factual testimony, they are admissible.
We assume that on remand, the district court will conduct a Rule 403 balancing
analysis and exercise reasoned discretion to determine the scope of admissible
testimony under Rule 702. See In re Hanford Nuclear Reservation Litig., 534 F.3d
986, 1016 (9th Cir. 2018) (“The district court has discretion [under Rule 403] to
exclude evidence when its probative value is substantially outweighed by the
danger of misleading the jury or confusing the issues. This is especially true with
respect to expert witnesses.”) (citation omitted); see also Murray v. S. Route Mar.
SA, 870 F.3d 915, 923 (9th Cir. 2017) (“Because of the fluid and contextual nature

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of the [reliability] inquiry, district courts are vested with ‘broad latitude’ to
‘decid[e] how to test an expert’s reliability’ and ‘whether or not [an] expert’s
[relevant] testimony is reliable.’” (alterations and emphases in original) (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152–53 (1999))). As we have noted
above, the district court has already stated that the Opinions are relevant. If the
district court excludes any evidence, it should articulate its reasons.2
REVERSED AND REMANDED.
2 In a supplemental letter, the government contends that the record is sufficient for
us to hold that the challenged sections of Opinion 3 and sub-opinions 1–4, 6–8, and
10–13 of Opinion 5 are admissible. The government relies on United States v.
Ruvalcaba-Garcia, --- F.3d ----, 2019 WL 2063373 (9th Cir. May 10, 2019) (per
curiam). In that case, this court held that the district court abused its discretion
when admitting an expert’s testimony at trial, but this court affirmed the
defendant’s conviction because the record demonstrated that the testimony was
admissible, and therefore, the district court committed harmless error. Id. at *5–6.
That case does not stand for the proposition, as the government suggests, that we
may take the place of the district court and independently determine which of the
provisions at issue in Opinions 3 and 5 are admissible.

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