                           NOT FOR PUBLICATION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


                                            3
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


                                          4
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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