NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10109
Plaintiff - Appellee, D.C. No. 3:08-cr-00502-MMC-1
v.
MEMORANDUM*
GALE JOSEPH YOUNG,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued July 10, 2013; Submitted April 22, 2014
San Francisco, California
Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.
Gale Joseph Young contends that the district court erred by admitting the
testimony of the government’s DNA analyst.
Expert testimony is admissible under Federal Rule of Evidence 702 if it is
both relevant and reliable. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
463 (9th Cir. 2014) (en banc). The trial court must exclude scientific testimony
“that does not meet Rule 702’s reliability standards by making a preliminary
determination that the expert’s testimony is reliable.” Mukhtar v. Cal. State Univ.,
299 F.3d 1053, 1063 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003)
(order), overruled in part on other grounds by Estate of Barabin, 740 F.3d at 467.
Although this inquiry is flexible and need not take any particular form, see Kumho
Tire v. Carmichael, 526 U.S. 137, 142 (1999); United States v. Alatorre, 222 F.3d
1098, 1102 (9th Cir. 2000), “some reliability determination must be apparent from
the record before we can uphold a district court’s decision to admit expert
testimony,” Mukhtar, 299 F.3d at 1066 (internal quotation marks and alterations
omitted); see also Estate of Barabin, 740 F.3d at 464. Alternatively, where the
district court has failed to make these determinations, if we “decide[] the record is
sufficient to determine whether expert testimony is relevant and reliable,” we “may
make such findings.” Estate of Barabin, 740 F.3d at 467.
Here, no reliability determination is apparent from the record. The district
court conducted a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993), but the transcript of that hearing reflects no specific
determination as to whether and why the government’s DNA expert testimony was
reliable.
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Among other challenges to the reliability of the DNA evidence, Young
argued that the DNA evidence in this case was unreliable because the laboratory
performed low-copy number DNA testing. Before the district court, the parties
disputed both the definition of the term low-copy number and whether the testing
in this case would meet the definition. There was also conflicting evidence before
the district court as to whether the DNA matching the defendant’s profile was a
major or minor contributor to the sample, which could make a difference as to the
reliability of the DNA analysis. One of the government’s experts seemed to view
the defendant as a major contributor. The district court did not determine whether
the government expert’s opinions were reliable as to either of these issues or
otherwise resolve these factual disputes.
Instead, the district court observed that the parties had pointed to a scientific
debate about how best to analyze DNA samples of the type used in this case. The
court ruled not that the government’s evidence was reliable, but only that it would
admit the evidence because none of the scientific researchers involved in that
debate were “being ridiculous in their general approach.” Not being ridiculous is
not synonymous with being reliable. As the district court did not make any
determination on the record that the particular expert who testified in this case had
used valid methods and would offer reliable testimony, it “failed to assume its role
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as gatekeeper” under Rule 702 and Daubert. Estate of Barabin, 740 F.3d at 463-
64.
Further, the record is insufficient for us to determine if the expert testimony
is reliable and relevant. Among other things, we cannot determine from the record
before us whether the DNA matching the defendant’s profile was a major or minor
contributor to the sample, and whether the testing here would qualify as low-copy
number. And, although the government’s witness testified that he took steps to
deal with any low-copy number DNA, the record is insufficient to determine
whether those methods were scientifically valid. Accordingly, “[w]e cannot speak
to the admissibility of the expert testimony at issue here because the record before
us is too sparse to determine whether the expert testimony is relevant and reliable.”
Id. at 467. “We can only say with certainty that the district court erred by failing to
make that determination.” Id.
“When we conclude evidence has been improperly admitted, we consider
whether the error was harmless.” Id. at 464 (internal quotation marks and citation
omitted). We conclude that it was not. Without the DNA evidence, the
circumstantial evidence and witness testimony against Young was weak. The
government argued to the jury that Young could be convicted on the strength of the
DNA evidence alone. We cannot say, therefore, that “it is more probable than not
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that the jury would have reached the same verdict even if the evidence had not
been admitted.” Id. at 465 (internal quotation marks and citation omitted).
Therefore, we must reverse Young’s conviction and remand for a new trial. Id. at
466-67; see also United States v. Christian, No. 12-10202, slip op. at 16-18 (9th
Cir. April 17, 2014).
We need not and do not reach any of the other issues that Young raised on
appeal.
REVERSED.
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