Sorry for the delay in reporting on this case. It slipped through the cracks because the Ninth Circuit no longer releases all of its published opinions at 10:00 am.
In United States v. Holguin, --- F.4th ---, No. 19-50158 (9th Cir. 2022), a divided panel affirmed the appellants' convictions for RICO and other crimes based on their alleged connection to the Canta Ranas gang.
This case deals at length with the requirement that district courts make explicit reliability findings for any expert testimony. It also addresses lay opinion testimony and dual-role testimony.
If you are challenging opinion testimony, this case is a must read. There is lots of helpful language.
Because the district court enjoys “broad latitude” with regard to “how to determine reliability,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (emphasis removed), we cannot say that its failure to hold a hearing in this case was an abuse of discretion. Yet it would have been prudent to hold such a hearing, or employ other procedures such as focused voir dire, because district courts must make explicit findings that the government’s expert testimony was reliable.We caution, however, that even if not required, it will often be beneficial for district courts to conduct some proceeding, focused on the reliability of expert testimony, such as a Daubert hearing or voir dire of proffered expert testimony.While a district court’s inquiry is “flexible,” Alatorre, 222 F.3d at 1102, “the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Valencia-Lopez, 971 F.3d at 898 (emphasis in original). A district court “abdicates its gatekeeping role, and necessarily abuses its discretion, when it makes no reliability findings.” Id.; see also Barabin, 740 F.3d at 464. Reliability findings must be made “explicit” on the record – an “implicit” finding does not suffice.A district court must distinguish an expert’s qualifications from the reliability of the expert’s principles and methods. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315-16 (9th Cir. 1995) (“[S]omething doesn’t become ‘scientific knowledge’ just because it’s uttered by a scientist.”). It is “an abuse of discretion to confuse Daubert’s reliability and qualification requirements.” Weinstein & Burger, supra, § 702.04. “While ‘there is inevitably some overlap … they remain distinct concepts and the courts must take care not to conflate them.’”To carry out its gatekeeping role, a district court must find that an expert’s testimony is reliable – an inquiry that focuses not on “what the experts say,” or their qualifications, “but what basis they have for saying it.” Daubert, 43 F.3d at 1316. A district court cannot be silent about reliability when challenged.
