Dave

MEMORANDUM *

James Ralph Dave (“Dave”) was convicted by a jury of abusive sexual contact with a minor under twelve years of age, and the district court entered a judgment of conviction under 18 U.S.C. § 2244 (c). We *41 have jurisdiction under 28 U.S.C. § 1291 , and for the reasons stated below, we reverse and remand for a new trial.

During the trial, the government called Mr. Schimmel to testify as a lay witness. Schimmel was a tribal liaison who worked at the alleged victim’s school. He testified that he had received training in recognizing “abuse” in children, and he had noticed some “red flags” in the victim’s behavior which indicated abuse. He stated that these red flags were changes in her behavior such as slipping grades, falling asleep in class, experimenting with marijuana, and becoming more “physically friendly.” Dave objected on the ground that Schimmel was offering testimony that could only be presented by a qualified expert, but the court refused to strike the challenged testimony. Dave argues that the court erred in failing to strike Schim-mel’s testimony. Dave is correct, as it is error to permit a lay witness to offer an opinion on a subject that only a qualified…