In United States v. Flores, --- F.3d ---, No. 16-50096 (9th Cir. 2018), the Court affirmed the defendant's sentence for illegal reentry.
There were two issues. First, whether the defendant's prior removals were valid. Second, whether, in a bench trial, the district court erred under Daubert by admitting a fingerprint examiner's testimony.
The first issue turned largely on whether the defendant's prior conviction for receiving stolen property under California Penal Code § 496(a) was an aggravated felony theft offense.
The Court's analysis was long and complex, with detours into Chevron deference. Ultimately, it held "California’s receipt of stolen property offense is a categorical match for the generic federal crime of receipt of stolen property and therefore it was not unreasonable for the Board of Immigration Appeals to construe it as a felony 'theft offense (including receipt of stolen property),' that is, as an aggravated felony as defined in the INA."
As to the fingerprint issue, the Court explained, "Flores waived his right to a jury trial and was convicted after a bench trial. Daubert is meant to protect juries from being swayed by dubious scientific testimony. When the district court sits as the finder of fact, there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself."
"Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”
