In United States v. Bacon, --- F.3d ---, No. 18-50120 (9th Cir. 2020) (en banc), the Court "consider[ed] what the proper remedy is on appeal when we conclude that a district court has erred under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds."
Under prior Circuit law, the requisite remedy was to vacate the conviction and remand for a new trial.
The Court overruled that precedent and held: "a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy 'as may be just under the circumstances.' 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial."
The en banc Court remanded for a further remedy determination.
But now the interesting part. As noted, in reaching its conclusion, the Court relied on 28 U.S.C. 2106 (which happens to be one of my favorite statutes). Section 2106 says: "The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."
To me, this opinion is an invitation for us to use section 2106 as the basis for requesting relief in all types of uncommon circumstances. If anyone needs briefing, let me know. I've been beating this drum for years.
