                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 17 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30375

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00008-RFC-1

  v.
                                                 MEMORANDUM*
ARLYN CASTRO, AKA Arlyn J. Old
Bear,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                           Submitted October 10, 2013**

                                  Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Arlyn Castro, Defendant-Appellant, appeals his jury conviction for abusive

sexual contact, in violation of 18 U.S.C. § 2244(a)(5), for touching the genitalia of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his then-four-year-old daughter, T.C. During the government’s case-in-chief, two

doctors were permitted to testify as to their ultimate diagnoses of child sexual

abuse. On appeal, Castro argues, inter alia, that the district court erred in allowing

this testimony. Because defense counsel failed to object at trial to the admission of

this testimony, we review for plain error. United States v. Crawford, 239 F.3d

1086, 1090 (9th Cir. 2001).

      Both parties agree that admission of the doctors’ testimony as to their

diagnoses of sexual abuse was plain error, and that we should remand for a new

trial. We agree. We have previously held that admission of expert testimony that a

child victim was credible was reversible error. United States v. Binder, 769 F.2d

595, 602 (9th Cir. 1985), overruled on other grounds by United States v. Morales,

108 F.3d 1031, 1035 n.1 (9th Cir. 1997) (en banc). Here, the doctors’ testimony as

to their diagnoses was tantamount to testifying to the victim’s credibility. Failure

to recognize the inadmissibility of such testimony was a clear error, usurping the

jury’s factfinding function and seriously affecting the fairness of Castro’s trial. See

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010).

      Because we remand for a new trial, we do not reach Castro’s remaining

issues on appeal.

             REVERSED and REMANDED.


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