NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         NOV 13 2020
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.   18-50120

                Plaintiff-Appellee,               D.C. No. 5:17-cr-00159-PA-1

 v.

PATRICK JOHN BACON,                               ORDER

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                       Argued and Submitted January 6, 2020
                            San Francisco, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,* District
Judge.

      This case was reheard en banc by order of this court. Dkt No. 72.

Consistent with the opinion of the en banc court, United States v. Bacon, No. 18-

50120, 

(9th Cir. Nov. 5, 2020) (en banc), we remand this case

to the district court with the following instructions. We instruct the district court to

conduct whatever proceedings it deems appropriate to determine whether Dr.


      *
         The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Karim’s testimony was admissible (reliable) pursuant to Federal Rule of Evidence

702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 

(1993), as

articulated in our per curiam opinion, United States v. Ray, 

(9th Cir.

2020), vacated in part by Bacon, 

. If the district court finds that

Dr. Karim’s testimony was admissible in accord with the proper method of

evaluation, we direct the court to grant Bacon a new trial. If the district court finds

that Dr. Karim’s testimony should be excluded in accord with the proper method of

evaluation, we direct the court to reinstate Bacon’s conviction and sentence. We

find this remand “just under the circumstances.” 28 U.S.C. § 2106; Bacon, 

, at *4.

VACATED AND REMANDED.




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