United States of America v. ARLYN CASTRO, AKA Arlyn J. Old Bear

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARLYN CASTRO, AKA Arlyn J. Old
Bear,
Defendant - Appellant.
No. 12-30375
D.C. No. 1:12-cr-00008-RFC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Submitted October 10, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Arlyn Castro, Defendant-Appellant, appeals his jury conviction for abusive
sexual contact, in violation of 18 U.S.C. § 2244(a)(5), for touching the genitalia of
FILED
OCT 17 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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his then-four-year-old daughter, T.C. During the government’s case-in-chief, two
doctors were permitted to testify as to their ultimate diagnoses of child sexual
abuse. On appeal, Castro argues, inter alia, that the district court erred in allowing
this testimony. Because defense counsel failed to object at trial to the admission of
this testimony, we review for plain error. United States v. Crawford, 239 F.3d
1086, 1090 (9th Cir. 2001).
Both parties agree that admission of the doctors’ testimony as to their
diagnoses of sexual abuse was plain error, and that we should remand for a new
trial. We agree. We have previously held that admission of expert testimony that a
child victim was credible was reversible error. United States v. Binder, 769 F.2d
595, 602 (9th Cir. 1985), overruled on other grounds by United States v. Morales,
108 F.3d 1031, 1035 n.1 (9th Cir. 1997) (en banc). Here, the doctors’ testimony as
to their diagnoses was tantamount to testifying to the victim’s credibility. Failure
to recognize the inadmissibility of such testimony was a clear error, usurping the
jury’s factfinding function and seriously affecting the fairness of Castro’s trial. See
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010).
Because we remand for a new trial, we do not reach Castro’s remaining
issues on appeal.
REVERSED and REMANDED.
2

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