
    UNITED STATES v. Technical Sergeant James A. THOMAS, FR414-17-5812, United States Air Force.
    ACM 30797.
    U.S. Air Force Court of Criminal Appeals.
    Sentence Adjudged 15 March 1993.
    Decided 12 Sept. 1995.
    
      Appellate Counsel for Appellant: Captain Robert E. Watson (argued), Colonel Jay L. Cohen, and Lieutenant Colonel Frank J. Spinner.
    Appellate Counsel for the United States: Colonel Jeffery T. Infelise (argued) and Major Barnard N. Madsen.
    Before DIXON, SCHREIER, and GAMBOA, Appellate Military Judges.
   OPINION OF THE COURT

GAMBOA Judge:

Appellant was convicted, contrary to his pleas, by general court-martial, of murdering Yolanda Pengson, and then desecrating her corpse. Articles 118 and 134, UCMJ, 10 U.S.C. §§ 918 and 934 (1988). His approved sentence is a dishonorable discharge, confinement for life, forfeiture of all pay and allowances, and reduction to the grade of E-l. Appellant assigns five errors. One assigned error challenges the admissibility of certain Deoxyribonucleic Acid (DNA) testing evidence, because the methodology and the locus where the test focused were unreliable. Admissibility of this DNA evidence is an issue of first impression for this Court.

I. FACTS

Appellant was stationed at Rhein-Main Air Base (AB), Germany. Although he was married, his wife and child did not accompany him, and he was living in an apartment at the time of the alleged offenses. According to appellant’s former roommate, Staff Sergeant Simmons Ennis, appellant would look through the personal advertisements of local papers for Filipino women who were in search of male companionship, because he considered them a “sub-race” subservient to Americans. As a result of one of these ads, he met Tessie Blumenstein, who introduced him to Ms. Yolanda (Yoli) Pengson. After a brief affair with Ms. Blumenstein, appellant began seeing Ms. Pengson. Ms. Pengson told another friend, Teresita Justice, that she was in love with appellant and wanted to marry him. During March 1991, appellant tried to end the relationship with Ms. Pengson on many occasions, but Ms. Pengson would not allow the relationship to end, and she would phone appellant several times a day. Appellant told his roommate that he was going to go to the embassy to try to get Ms. Pengson’s “green card” revoked, and that he would have to do “something else” if that didn’t work. In August 1991, appellant went on leave to the United States to visit his family. When he returned, appellant asserted his former roommate told his wife that he was “fooling around” in Germany, and, as a result, appellant was afraid his wife was going to divorce him. Appellant asked the noncommissioned officer in charge (NCOIC) of Combat Arms and Training how to build a silencer. When asked why he needed to know, appellant said “he had a problem to take care of.”

On Thursday, 5 September 1991, appellant reserved a maroon Ford Sierra from the Hertz Auto Rental on Rhein-Main AB. David Adams, a former security policeman who worked part-time for Hertz while a member of the Air Force, testified that he inspected the rental car when he picked it up at Kelsterbach for transport to Rhein-Main and also cleaned the vehicle before it was rented to appellant. On the afternoon of 5 September 1991, appellant purchased coupons for 100 liters of gasoline. Appellant picked up the rental car on Friday, 6 September 1991, at about 1600, accompanied by a woman named Yolanda who had the same physical characteristics (short, dark haired) as the victim. The odometer reflected 16,572 kilometers. Later that day, Senior Airman Gilbert Patterson saw appellant driving the rental car. Appellant told Airman Patterson he rented the car to take a trip to Hannover. Appellant told a co-worker/supervisor, Master Sergeant Marvin Evans, that his auto was running poorly, and that he rented a car to take a trip to north Germany with a friend who was returning from the United States. The round trip to Hannover is about 700 km. When Ms. Pengson left work on Friday, she told her employer' that she was going to spend the weekend with the appellant.

On Saturday, 7 September, Sergeant Evans saw appellant drive past the Base Exchange at Rhein-Main AB. That evening, Ms. Pengson attended a party at the home of Ms. Justice. While at the party, Ms. Pengson phoned appellant and said she would meet him that evening at Hauptbahnhof. She also told Ms. Justice she was going to meet the appellant. After the party, Ms. Justice walked Ms. Pengson to the train station at Schiesshuttenstrasse, where the streetcar operator saw Ms. Pengson board the train. No one saw Ms. Pengson alive after that evening. Ms. Justice was scheduled to work with Ms. Pengson on Sunday, 8 September. However, Ms. Pengson never arrived.

In addition to his military duties, appellant worked part time at the base Auto Skills Center. On Saturday, 7 September, he worked his normal day shift. That afternoon he loaned his vehicle to Airman Patterson, whose car had broken down. That night at approximately 2200-2230, a female with “an oriental voice” phoned the Auto Skills Center and asked to speak to the appellant. Appellant, who had been there earlier that evening and left, returned about 30 minutes later. When told about the phone call, he said “ok” and left about five minutes later.

Later Saturday night or early Sunday morning, appellant phoned his Auto Skills Center supervisor and advised him that he would be late for the 0800 shift. Appellant did not arrive at the Auto Skills Center until 1030, and worked until about 1830. He phoned Sergeant Evans on Sunday evening between 2300 and 2400 hours, and asked to be excused from work on Monday, claiming he had to work at the Auto Skills Center that (Sunday) night.

Around 0300-0400 on Monday, 9 September, appellant drove the rental car to the 435th Transportation Squadron compound. The compound is immediately adjacent to Building 243, appellant’s duty section, and vehicles must enter the compound to get to Building 243. When asked by a driver why he was in the compound, appellant responded that he had to work on his vehicle, had authority to do so and had his tools in the trunk. Appellant then drove the rental car into the Building 243 garage and departed in the rental car about 45 minutes later.

On Monday morning, 9 September, at about 0710, Manfred Bub was riding his bicycle through the forest near Kronau, which is located about 100 km from Frankfurt, when he saw a dark colored car coming from the forest traveling at a high rate of speed. After the vehicle went by, Herr Bub looked in the direction from which the vehicle had come and saw “something like light shining from out of the forest____” At approximately 0815 on 9 September, a forester came upon what appeared to be a human body that was burning and notified the police.

Appellant visited his duty section for a brief period on Monday morning shortly after 0900, and received his car keys (and car) from Gilbert Patterson around that time. Around 0950 that same morning, appellant returned the rental car to the Hertz Rental Car agent on Rhein-Main. Appellant told the agent that there were leaves and dirt in the back floorboard and the trunk when he rented the vehicle. When David Adams inspected the car on its return, there was dirt and mud in the back seat and a large stain in the trunk. The stain was approximately one foot in diameter and dry and crusty to the touch. The vehicle’s odometer registered 17,126 kilometers when returned by appellant. While rented to appellant, the car was driven a total of 554 kilometers. On 10 September, the car was cleaned.

Investigation

An autopsy found that the body discovered in the forest was badly burned. The head and hands had been removed, probably by repeated cuts with a knife, and an ax or machete had been used to sever the spine and bones in the arms. There were also parallel grooves on one of the victim’s forearms consistent with the use of a saw. Based on food found in the digestive track, which mirrored that eaten by Ms. Pengson at Ms. Justice’s party, the pathologist determined that the victim had eaten within four or five hours of her death. He determined the victim was dead at the time the body was set afire, and opined that the cause of death was massive loss of blood. He also estimated that death occurred between one and three days before the body was discovered. The victim’s head and hands were never recovered.

On 9 September 1991, German police officers removed blood, tissue and hair samples from the body and obtained blood samples from Ms. Pengson’s two sisters. On 20 September 1991, they seized undergarments and collected hairs from Ms. Pengson’s apartment. On 2 October 1991, German police officers took hair samples from the women’s restroom wash basin drain, in Building 243, and seized an ax from a shelf in the hallway of Building 243, because it was the only ax there that was unwrapped and without dust. A small stain on the ax field tested positive for the presence of blood. The automobile appellant rented from 6-9 September, had since been rented to two laborers. On 25 September 1991, police seized the vehicle and took fiber samples.

A biologist, specializing in hair analysis for the State Bureau of Criminal Investigation at Stuttgart, testified that the hairs that were taken from the bra found on the burned body in the forest matched those from Ms. Pengson’s apartment. The hair from Ms. Pengson’s apartment exhibited an unusual phenomenon that neither the biologist nor her colleague had seen before, i.e. sharp bends like a curve. She found this phenomena in hair from the burnt torso, the bra, and the wash basin drain of Building 243.

Dr. Werner Pflug, a serologist and microbiologist at the State Bureau of Criminal Investigation at Stuttgart, conducted DNA analysis of blood and tissue samples from the body discovered in the forest, samples from the undergarments taken from Ms. Pengson’s apartment, blood samples from the ax seized from Building 243, blood samples from Ms. Pengson’s sisters, and minute suspected blood samples which were lifted from the rental vehicle following its cleaning.

Dr. Pflug performed DNA testing on the undergarments, tissue from the victim and blood samples from Ms. Pengson’s sisters using the Restricted Fragment Length Polymorphism (RFLP) methodology, and concluded that the DNA results from these items were consistent with the DNA fragments from the body discovered in the forest and the undergarment’s from Ms. Pengson’s apartment. He also determined that the blood samples from Ms. Pengson’s sisters had DNA fragments in common with the tissue from the victim. Dr. Pflug then performed DNA testing of the samples from the body found in the forest and the undergarments found in Pengson’s apartment using the Polymerase Chain Reaction (PCR) method, using specifically the Amplified fragment length polymorphism (Amp-FLP) subset in the Apo-Lipo protein, B gene (Apo-B) locus. He determined that the DNA from all these sources was identical.

Dr. Pflug conducted DNA testing on the material taken from the trunk and driver’s seat of the rental car and the ax seized from Building 243 using only the PCR methodology because RFLP testing was not possible on samples that small. Based on his analysis, Dr. Pflug concluded that the samples taken from the victim, from the driver’s seat and trunk of appellant’s rental car, and from the ax all contained similar DNA fragments.

II. ADMISSIBILITY OF PCR DNA TESTING EVIDENCE

Appellant argues that the military judge erred in admitting DNA testing evidence of the samples from the rental car and the ax because: PCR Amp-FLP technology is still under development and scientific standards and guidelines have not been established; the Amp-FLP testing in the Apo-B region methodology, used by Dr. Pflug, has been considered for use and rejected by the Federal Bureau of Investigation (FBI) and Royal Canadian Mounted Police as unreliable; and Dr. Pflug’s methodology was flawed. While appellant concedes that the PCR methodology has been subjected to peer review and publication and is generally accepted, he asserts that PCR is a broad term encompassing three different types of testing — DQ-Alpha, Amp-FLP, and Mitochondrial DNA Sequencing. Appellant, supported by both government and defense expert testimony, states that only DQ-Alpha has been admitted in any American court. He contends that the PCR Amp-FLP testing in the Apo-B region employed by Dr. Pflug is not scientifically reliable. This is the first time this Court, or to our knowledge any military court, has addressed the admissibility of DNA testing using the PCR method or the Amp-FLP subset in the Apo-B locus.

Background-DNA Testing

There are two types of DNA testing, RFLP and PCR. The FBI has used RFLP testing for five years. Admissibility of the RFLP based evidence was not contested. Both methods look at the variable number of tandem repeats (VNTRs), and these repeats can vary in terms of the size of each repeat. One allele (fragment) is distinguished from another one by its overall length, which has variability among the population. Essentially, one looks at whether or not DNA bands match. Then the question is, if a number of these bands match, what is the probability that another individual would randomly have the same pattern.

PCR methodology has been used for eight years, and is widely accepted in the medical and scientific community, as well as the clinical diagnostic field. PCR is used in lieu of RFLP when the amount of available DNA to examine is too small. PCR generates a DNA profile in much the same way as RFLP, except that, instead of cutting out the DNA to be tested, the region of interest is amplified prior to testing.

The subset of PCR, Amp-FLP, used in the analysis in issue here, has been used in research for 5 or 6 years. No American criminal laboratory currently uses Amp-FLP DNA testing. Amp-FLPs were used to reassociate the fragmented remains of DESERT STORM casualties. The Apo-Lipo protein, B gene (Apo-B), located on Chromosome # 2, helps transport cholesterol through the blood. It is a particular location on the DNA which is highly variable and informative, and therefore attractive for DNA testing. The Analytical Genetic Testing Center in Denver, a private, for profit laboratory involved in paternity and forensic testing, uses Apo-B as the Amp-FLP identification area in their analyses. It was the location used by Dr. Pflug in his PCR Amp-FLP testing.

Testimony

Dr. Pflug testified that he used PCR in the Apo-B locus for investigating the micro blood stains found on the ax and on the fibers from the rental vehicle because the samples collected were too small to use the RFLP method. He has studied the Apo-B area for almost two years and has analyzed about 4,000 PCR case samples during this time. He has examined about 120 cases containing 3,000 to 3,500 samples using ApoB. He uses a protocol and standard operating procedure for running PCR tests in his laboratory. Dr. Pflug’s laboratory quality control and proficiency, including his PCR procedures, are tested twice a year by a German organization which inspects 30 to 40 laboratories in the German speaking nations of Germany, Switzerland, and Austria.

Dr. Pflug testified that in PCR there are distinct fragments and these distinct fragments are compared to the known fragments of his ladder. His allele ladder is made up of known human DNA samples. He asserts that this serves as the necessary human DNA control. Dr. Pflug stated his ladders fulfill the purpose of a positive control, and that, as a result, he can correctly determine the genotype.

Using PCR, Dr. Pflug found that the samples taken from Ms. Pengson’s underpants and the samples from the victim’s torso matched. He concluded that the genotype from the undergarments and the torso matched those samples taken from the ax and from the rental car. There was only enough material from the ax and the car to perform the test one time.

Dr. Valerie Prenger, a human population genetics expert, testified that she examined a Filipino database of DNA tests results that had been generated by Dr. Pflug. Based on her analysis, she concluded that, conservatively, it was 76.5 times more likely that the samples tested by Dr. Pflug, using PCR, came from the victim than someone else in the Filipino population. Dr. Prenger also concluded that it was 843.2 times more likely that the DNA fragments found by Dr. Pflug in the samples from the rental car and the ax, which he tested using PCR, came from the victim than from anyone else in the general population.

Dr. Arthur Eisenberg, Associate Professor of Pathology at the Texas College of Osteopathic Medicine, and Director of the State of Texas DNA Identity Laboratory, testified for the defense. He is an active collaborative consultant with both the FBI’s DNA laboratory and the equivalent Royal Canadian Mounted Police laboratory in Canada. He opined that Dr. Pflug’s PCR Amp-FLP DNA test results from the ax and rental car samples did not provide any scientifically reliable information. He stated that guidelines had not yet been developed for Amp-FLP testing, and that while Amp-FLP technology will eventually be used by the FBI for forensic purposes, it had not yet reached that stage.

Dr. Eisenberg testified that the Royal Canadian Mounted Police and the FBI both decided not to use the Apo-B region as part of their Amp-FLP identification systems because “they found it to be an extremely difficult system to interpret and to work with and allow the reliable exchange of scientific data....” Dr. Eisenberg stated that Dr. Pflug’s testing process creates artifacts which should not be present, e.g. contaminants, and asserted that the amplification process does not always work properly. He noted several weaknesses with Dr. Pflug’s PCR Amp-FLP testing in the Apo-B region, including the lack of a human control, which he considered essential. Dr. Eisenberg criticized Dr. Pflug’s methodology for lack of positive controls in the gels used, lack of reference standards, lack of computer confirmation, and various other shortcomings. He discounted Dr. Pflug’s conclusions since they were essentially based on visual approximation.

Dr. Eisenberg also testified that he consulted many of the world’s leading authorities on use of Amp-FLP technology. They unanimously agreed that without running samples on the same gel immediately next to reference standards, which was not done by Dr. Pflug in his PCR testing, accurate conclusions could not be reliably reached. Dr. Eisenberg stated, however, that PCR was possibly the most widely recognized technique currently used in research science.

A government expert, Dr. Mitchell Holland, the head of the Armed Forces Institute of Pathology DNA Identification Laboratory, also testified that he would have reported Dr. Pflug’s PCR, Amp-FLP, Apo-B results regarding the ax and rental car, as inconclusive under his laboratory’s standards. Both he and Dr. Eisenberg are members of the FBI’s Technical Working Group in DNA Analysis that is establishing guidelines and standards for reliable (for court systems) DNA testing. He believes that the FBI will eventually start using Amp-FLPs. Dr. Holland stated that without a positive control on a gel, the results are inconclusive, regardless of whether there is a match or not. He also stated that you cannot declare a match across gels as was done by Dr. Pflug, e.g., if there is a sample in gel 1 and another sample in gel 2, even if there is a visual match, it would still be inconclusive under the criteria used in his laboratory. Dr. Holland stated, however, that the conclusions of a European laboratory were not necessarily incorrect merely because they did not apply American standards.

Case Law

The standard of review of a military judge’s admission of expert testimony is whether he abused his discretion. United States v. Houser, 36 M.J. 392 (C.M.A) cert. denied, — U.S. -, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993). The trial judge must determine that an expert’s testimony rests on a reliable foundation and is relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,-, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). The standard of evidentiary reliability (admissibility) is whether the evidence or expert’s testimony pertains to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. It must be helpful and there must be a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Daubert, 509 U.S. at-- -, 113 S.Ct. at 2795-96.

When expert scientific testimony is offered, the trial judge must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. To do so he must first assess whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. Daubert, 509 U.S. at-, 113 S.Ct. at 2796. Many considerations will bear on the inquiry, among them: whether the theory or technique in question can be and has been tested; whether it has been subjected to peer review and publication; its known or potential error rate and the existence and maintenance of standards controlling its operation; and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Daubert, 509 U.S. at---, 113 S.Ct. at 2796-97. The fact that the protocol for a scientific test is not perfect or that it could be done differently or better is not a basis to exclude the result of a test conducted pursuant to that protocol. Exclusion of the evidence under an uncompromising “general acceptance” standard is not the appropriate means of attacking shaky but admissible evidence. The traditional and appropriate way to attack such evidence is through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Daubert, 509 U.S. at-, 113 S.Ct. at 2798.

In a court-martial, admissibility of scientific evidence is governed by the Military Rules of Evidence and requires the proponent to establish: “(A) the qualifications of the expert, Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 M.J. 246 (C.M.A.1987) and Mil.R.Evid. 401; and (F) whether the probative value of the testimony outweighs other considerations, Mil.R.Evid. 403.” United States v. Johnston, 41 M.J. 13, 16 (C.M.A. 1994) (quoting United States v. Combs, 39 M.J. 288, 290 n. 1 (C.M.A.1994)).

Military Judge’s Findings

The military judge found that: the underlying scientific principle in DNA analysis is reliable and accepted; the techniques used in this case were scientifically valid; the RFLP technique yielded valid conclusions in this case; the PCR test “yielded results which may or may not be accepted, but on the facts of this case in an emerging area not yet validated in the United States and where protocols may be in dispute among experts in the field, it is for the fact finders to determine”; with proper guidance the determination of this issue would not overwhelm or confuse the court members; judicial economy considerations were outweighed by the interests of justice; and the probative value of the PCR test outweighed any unfair prejudice. Accordingly, he denied the motion to suppress.

Decision

The military judge did not abuse his discretion by admitting the results of the PCR Amp-FLP test in the Apo-B region. Dr. Pflug is the head of a credible German state laboratory whose PCR process is qualitatively examined twice a year. Dr. Pflug was offered and accepted as an expert in molecular biology, particularly DNA analysis, without objection. He had extensive experience with DNA testing, and had conducted Amp-FLP analysis for over three and one half years. He had worked in the Apo-B region for over two years. Dr. Pflug had analyzed approximately 4,000 samples using this protocol. The subject matter of his testimony assisted the trier of fact to understand the evidence and facts in issue. Dr. Pflug’s testimony and opinions were based on scientific tests conducted in his own laboratory under his supervision, and his testimony was certainly relevant.

The basic scientific methodology upon which PCR is based is widely accepted in the medical and scientific community, and its efficacy has been recognized by other courts. State v. Lyons, 124 Or.App. 598, 863 P.2d 1303 (1993); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (Va.), cert, denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990). Amp-FLP has been tested across the scientific spectrum. The theory of Amp-FLP, including analysis of the Apo-B region, has been published and subjected to peer review. Dr. Holland testified that, between 1985 and 1990, PCR analysis was the subject of approximately 1400 papers published in the scientific community. Of these articles, at least 50 specifically dealt with the Amp-FLP procedure. Additionally, four scientific papers on PCR analysis that focused on the Apo-B region of DNA were offered at trial. The Apo-B methodology employed by Dr. Pflug is also used by an American, private, for profit laboratory in paternity testing.

Dr. Pflug used an established protocol. He performed PCR testing instead of RFLP, not because he did not recognize the advantages of RFLP, but because there was insufficient DNA available. His PCR results paralleled those done using RFLP where there was sufficient DNA sample (identification of the victim). His opinions, and the underlying scientific principles upon which they were based, were reliable. As stated by Dr. Holland, failure to follow American standards or procedures does not invalidate results. That Dr. Pflug’s protocol was not perfect, or that it could have been done differently, or that its conclusions cannot be ascertained to a scientific certainty, are not bases to exclude the results of his tests. Dr. Pflug’s testing provided legitimate scientifically-based results. There was a dispute as to the validity of these results. The military judge allowed the members to hear this dispute. There was vigorous cross-examination of Dr. Pflug. Dr. Eisenberg, testifying for the appellant, provided an effective critique of Dr. Pflug’s testing process, procedures, techniques, and results. This is what is envisioned by Daubert. Any shortcomings in Dr. Pflug’s testing technique were matters that went to the weight the members could accord the evidence, not its admissibility. I reject this assignment of error.

III. ADMISSIBILITY OF COMBINED POPULATION STUDY STATISTICS

Appellant argues it was plain error to permit the introduction of statistics from a combined population study consisting of 77.5% Germans and only 32.5% Filipinos because those figures inflated the likelihood that the victim was the source of the questioned samples by nearly ten times. The general population statistics presented by Dr. Prenger were derived from the PCR Amp-FLP analysis of a combination of 344 German Caucasians and 100 Filipinos which is not representative of the population of Germany. Appellant asserts that combining the Caucasian German database with the Filipino data base inflated the exclusion statistic because the sample did not include Germany’s many ethnic groups. Appellant also asserts that these population statistics were derived from the same unreliable PCR Amp-FLP technique used to test the alleged samples from the rental car and the ax. The Filipino data base that Dr. Prenger used was collected by Dr. Pflug, so the statistical conclusions she reached are based on the accuracy and reliability of Dr. Pflug’s testing and his conclusions.

Dr. Valerie Prenger, Assistant Professor and Director of the Genetic Epidemiology Section at the University of Maryland at the Baltimore School of Medicine, was qualified as an expert in the field of human population genetics, without objection. She testified that frequency of the genotypes in a population are determined by obtaining DNA samples at random in the population. The samples are then typed for genotype. The Hardy-Weinger Law is the traditional mathematical model used to predict how frequent or rare a particular gene or genotype would be in a population. It has been found to be accurate regardless of in or out migration or mutation rates. Dr. Prenger conducted a statistical analysis of the Amp-FLP analysis conducted by Dr. Pflug, using a database of just Filipinos and a database made up of a combined population of Germans and Filipinos. Her population study did meet the Hardy-Weinger model in this case. She testified, without objection from trial defense counsel, that, conservatively, it was 76.5 times more likely that the samples from the ax and the rented car came from the victim than someone else in the Filipino population. Applying a conservative confidence level, it was 842.3 times more likely that the samples tested came from the victim than anyone else in combined population data base of Germans and Filipinos.

Case Law

Failure to object to testimony constitutes waiver in the absence of plain error. Mil.R.Evid. 103(a)(1)(d); United States v. Dudding, 37 M.J. 429, 430 (C.M.A.1993). To be plain error, “the error must not only be both obvious and substantial, it must also have ‘had an unfair prejudicial impact on the jury’s deliberations.’ ” United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). The doctrine should be invoked “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Fisher at 328-329.

Decision

Dr. Prenger’s qualifications and the methodology she used to reach her conclusions were unchallenged at trial. She used the acceptable mathematical model to establish her conservative probabilities. There was no evidence presented that rebutted her testimony. Her testimony was admissible under Daubert. There was no plain error.

IV. APPELLANT’S FAILURE TO DENY GUILT

Appellant argues that he was denied his constitutional rights of due process and to remain silent when the government presented evidence that he did not deny the allegations upon being questioned by investigators, and when trial counsel argued that his silence constituted consciousness of guilt.

German police officer Thomas Beckert testified that on 22 and 24 September 1991, he interviewed appellant while appellant was in custody. When he conducted the interviews, the investigation was being conducted by German authorities and no agent of the United States Air Force was involved or present. Appellant was advised of rights which parallel Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Beckert advised appellant that Ms. Pengson was last seen going to visit him, and appellant admitted that he met Ms. Pengson on Saturday, September 7. Beckert stated that appellant cried and stated that when he thought about this crime, “his head was empty and he only looks black.”

Two days later Officer Beckert again spoke with appellant in the United States military prison in Mannheim. Appellant admitted that he had sexual intercourse with Ms. Pengson in his home and in her home. He told Officer Beckert that he rented a vehicle because his automobile was running poorly, and he needed transportation to drive to work. The appellant told Officer Beckert that he could get the death penalty in an American court. Beckert told him that if his case was decided by a German judge, there was no death penalty, but that he would possibly get life imprisonment. Appellant replied it would be “better to be condemned by a German judge.” Appellant also asked Officer Beckert what German prisoners do while in prison. Officer Beckert testified that the appellant never denied any connection or involvement with Ms. Pengson’s murder.

Trial counsel argued as follows during findings:

He starts asking about what his risks are in the various jurisdictions that might try him. “What do German inmates do? Does Germany have the death penalty? What does life in prison really mean in Germany?” “About fifteen years.” He thinks it would be better if he were tried in a German court. Members of the court, this is a man, sitting in a U.S. confinement facility, speaking with a German police detective, accused of the murder of a woman who was last seen in route to his house; in route to meet him. And what is he talking about, the relative risks of which jurisdiction he’s going to be tried in. Remember what Officer Beckert said in the last question that I asked him? “Did, at any time, in either of these interviews the accused ever tell you he’s not involved in Miss Pengson’s death?” “No, he’s talked about everything but that.”

The military judge later instructed the court members concerning consciousness of guilt. Trial defense counsel did not object to the instruction.

Case Law

It is improper to bring to the attention of the court members evidence that the accused exercised his pretrial rights to remain silent or to request a lawyer. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986); United States v. Garrett, 24 M.J. 413 (C.M.A.1987); United States v. Earnesty, 34 M.J. 1179 (A.F.C.M.R. 1992). Failure to object to the testimony of a witness or argument of counsel constitutes waiver in the absence of plain error. Mil.R.Evid. 103(a)(1), (d); United States v. Dudding.

Decision

Officer Beckert’s interviews of appellant were foreign interrogations in which military authorities did not participate. Consequently, the statements made during these interviews were admissible unless they were obtained through the use of coercion, unlawful influence or unlawful inducement. Mil.R.Evid. 305(h)(2). See also United States v. French, 38 M.J. 420 (C.M.A.1993), cert, denied; — U.S. -, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994). There is no evidence that the statements were involuntary. Appellant was not silent when questioned. He attempted to explain his behavior and asked about what the police knew and which criminal jurisdiction would be most advantageous. He asked what German prisoners did. Appellant did not request that the interviews be terminated or decline to answer questions concerning Ms. Pengson’s death. Neither trial counsel’s questions to Officer Beckert nor his subsequent argument highlighted appellant’s silence when questioned or appellant’s failure to testify at trial. They were a fair comment on what appellant voluntarily said when questioned about Ms. Pengson’s murder. Appellant did not object at trial to either trial counsel’s questions of Officer Beckert or his argument concerning them. There was no plain error, and appellant’s argument is rejected.

V. SPEEDY TRIAL

Appellant asserts that his rights to a speedy trial under R.C.M. 707, Article 10, UCMJ, 10 U.S.C. § 810, and the Sixth Amendment were violated because he was confined for 250 days before charges were preferred. Appellant argues that the speedy trial clock began to run when he was first confined by military authorities at German request, because the Status of Forces Agreement (SOFA) requires the Air Force to assert jurisdiction upon being made aware of charges against a member of the forces.

Background

Appellant was arrested by German police pursuant to an arrest warrant issued by a German judge on 21 September 1991. A confinement hearing was conducted that same day by a German magistrate who determined that confinement was appropriate. Mr. Emst-Juergen Zschiesche, the German legal advisor at the Rhein-Main base legal office, and the base Staff Judge Advocate attended appellant’s pretrial confinement hearing in Bruchsal. They advised the magistrate and German prosecutor that, under the SOFA, they had authority to request that the accused be placed in a United States military confinement facility. The Germans stated that they wanted their police officers to have access to the accused, his mail checked, and then agreed to let the United States confine the appellant. On 22 September 1991, appellant was placed in pretrial confinement at the American military confinement facility on Coleman Barracks, Mannheim, Federal Republic of Germany. A pretrial confinement hearing was held on 25 September 1991. The military magistrate determined that pretrial confinement was appropriate to insure appellant’s presence for trial in German court and because German authority would accept no lesser form of restraint. The Air Force therefore continued the appellant in pre-trial confinement for German authorities.

The commander of the Rhein-Main AB, Air Force Office of Special Investigations (AFOSI) detachment met with German prosecutors on 4 October 1991. The Germans advised him that they would head the investigation and prosecute the case. On 14 November 1991, the Germans advised Mr. Zschiesche that they were awaiting laboratory test results, including DNA results, and that their evaluation of the case depended on these test results. The Germans also stated they wanted the accused continued in pretrial confinement. On 25 November 1991, the German prosecutor advised Mr. Zschiesche that he was still awaiting the results of DNA and other tests which he said were needed to determine jurisdictional facts, such as the SOFA status of the victim (or lack thereof). On three separate occasions, the Germans advised American military authorities that lesser forms of pretrial confinement were not acceptable to them, and they insisted that the U.S. continue pretrial confinement. At a meeting in January 1992, German prosecutors expressed that they thought they had jurisdiction.

The German investigation continued into 1992, and as evidence was seized, it was forensically tested. On 10 March 1992, the AFOSI at Rhein-Main concluded that the victim was not a member of or accompanying U.S. forces. On 28 April 1992, military authorities received a translated copy of the DNA test results, and on 12 May 1992, they notified the German prosecutor, by letter, that the U.S. intended to prosecute appellant. On 29 May 1992, the German prosecutor notified Air Force authorities that the German government would not recall jurisdiction of appellant’s case. Charges were preferred against appellant that same day, and appellant was ordered into military pretrial confinement for the first time pending court-martial. Another pretrial confinement hearing was conducted on 1 June 1992, by a military judge who found that continued confinement was appropriate. Charges were referred against appellant on 15 October 1992, and he was arraigned on 10 December 1992.

Applicable Law

R.C.M. 707(a) requires that an accused be brought to trial within 120 days of preferral of charges or imposition of restraint, whichever is earlier. The government becomes accountable under R.C.M. 707 for the time an accused is in pretrial confinement when he or she is no longer being held for or at the request of foreign authorities pursuant to a treaty obligation. United States v. Murphy, 18 M.J. 220, 234 n. 17 (C.M.A.1984); see United States v. Youngberg, 38 M.J. 635, 639 (A.C.M.R.1993).

To decide if a violation of the Sixth Amendment, Speedy Trial Clause has occurred, we will apply and balance four factors: the length of pretrial delay, the reasons for the pretrial delay, whether the accused has demanded speedy trial, and prejudice suffered by the accused because of the delay. Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). Of these factor, we will give especially strong weight to whether an accused has demanded speedy trial. Id

For an accused in pretrial confinement, Article 10, UCMJ, 10 U.S.C. § 810, requires immediate steps to try him or to dismiss the charges and release him. The government satisfies Article 10 when it exercises “reasonable diligence.” United States v. Kossman, 38 M.J. 258, 262 (C.M.A.1993)

When there is a claim that an accused’s right to a speedy trial has been violated, we will grant relief only if the military judge abused his discretion. United States v. Edmond 41 M.J. 419, 422 (1995). We will defer to his findings of fact unless they are unsupported by the evidence of record or clearly erroneous. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985).

The pertinent provisions of the SOFA (Articles VII and XIX) provide that the U.S. will have primary jurisdiction over crimes committed by a servicemember when the crime involves the property of the U.S., the person or property of another service member or civilian component of the U.S., or a dependent of a U.S. service member or civilian component. It is incumbent upon the nation having primary jurisdiction to notify the other State of a decision not to exercise its authority. German authorities agreed to waive their right to exercise jurisdiction in offenses over which the U.S. and Germany exercise concurrent jurisdiction with the proviso that the U.S. notify German authorities of its intent to exercise jurisdiction. In cases that involve major interests of German administration of justice, making the exercise of German jurisdiction imperative, German authorities may recall the waiver that is otherwise granted.

Decision

At trial, the military judge found that the confinement from 22 September 1991 until 29 May 1992 was imposed pursuant to treaty obligation and not for purposes of military prosecution. He also found that the Germans would have retained jurisdiction if they felt imposition of the death penalty was a possibility. Furthermore, the military judge concluded that had the U.S. government notified the German government that it intended to proceed to trial based upon the general waiver of jurisdiction prior to completion of the complex forensic investigation, there would likely have been a German recall of jurisdiction. We agree. Because the death penalty was possible under American military law, but not under German law, this was not the typical case where, by common practice, the German authorities released jurisdiction. At no time prior to May 1992 did the German authorities indicate they intended to relinquish jurisdiction or that they would agree to a lesser form of restraint than pretrial confinement of appellant. In fact, it was made clear that the Germans would retain jurisdiction if they felt imposition of the death penalty was a possibility.

Under the SOFA the United States was obligated to notify German authorities of its intent to exercise jurisdiction over appellant, in order to provide the opportunity to recall the waiver. There is nothing in any of the SOFA provisions, however, that mandates when the U.S. must assert jurisdiction. Furthermore, the identity and status of the victim may have been determinative of which sovereign had jurisdiction, i.e., if the victim was a member of the U.S. armed forces, a member of the civilian component or a dependent, the U.S. had exclusive jurisdiction over appellant. Furthermore, the German authorities needed to conduct a complete investigation to determine whether “major interests of German administration of justice” required they exercise jurisdiction in a case involving homicide. Appellant was not available for trial by Air Force authorities until the German government relinquished jurisdiction. Once German authorities waived jurisdiction, appellant was charged and brought to trial within 195 days. Of that time, 140 days were the direct result of approved defense requested delays. These delays are excluded from government accountability. R.C.M. 707(c). The remaining 45 days is well within the 120-day standard. R.C.M. 707(a).

The government exercised reasonable diligence in getting the appellant to trial. United States v. Kossman, 38 M.J. 258 (C.M.A 1993). Therefore, appellant’s Article 10, UCMJ, speedy trial right was not violated. Appellant did not demand a speedy trial, and appellant was not prejudiced by the delay. Moreover, the delay was based on legitimate reasons and was not excessive. Accordingly, we find there was no Sixth Amendment violation. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Appellant’s assertion of error is rejected.

VI. DEFENSE REQUESTED REASONABLE DOUBT INSTRUCTION

The defense requested the military judge give a reasonable doubt instruction which modified the standard reasonable doubt instruction taken from the Army’s MILITARY JUDGE’S BENCHBOOK, Army Pamphlet 27-9, paragraph 2-29.1. The defense requested instruction stated that proof beyond a reasonable doubt means “proof to an evidentiary certainty.” It also instructed that proof beyond a reasonable doubt was “more than mere suspicion or conjecture,” “greater than a preponderance of the evidence,” “a level of proof greater than more likely than not. It is not even sufficient that the evidence be merely ‘clear and convincing.’” The military judge refused to give the tendered instruction, and instead gave one which, in relevant part, stated,

A reasonable doubt is a conscientious doubt, based upon reason and common sense, and arising from the state of the evidence. It is rarely possible to prove anything to absolute certainty • • • What is required is not a mathematical certainty, but a moral certainty. An accused is not to be convicted on suspicion or conjecture, and the accused has the right to rely upon the failure of the prosecution’s proof.

Applicable Law

The military judge has substantial discretion in deciding which instructions to give. We review the military judge’s refusal to give a defense-requested instruction for an abuse of discretion. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993), cert, denied, — U.S.-, 114 S.Ct. 2760, 129 L.Ed.2d 875 (1994).

Decision

Appellant’s argument is without merit. The military judge’s instruction to the court members was accurate, and taken together with the instructions on the presumption of innocence, precluded any reasonable likelihood that the court members would apply the instruction improperly or in a manner that violated due process. United States v. Robinson, 38 M.J. 30 (C.M.A.1993). The military judge stated that the court members must rely on “proof’ to base a finding of guilt. There was no abuse of discretion.

VII. CONCLUSION

Consistent with the foregoing, the findings and the sentence are correct in law and fact, the sentence is not inappropriate, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

SCHREIER, Judge

(concurring in part, dissenting in part):

I believe the military judge erred in admitting the DNA evidence concerning the PCR Amp-FLP analysis in the Apo-B region on microstains found in appellant’s rental car and on an axe located in appellant’s work area. However, I also believe the error was harmless and am convinced beyond a reasonable doubt that appellant is guilty of Ms. Yolanda Pengson’s murder.

A relatively new procedure for analyzing minute quantities of DNA developed the questionable evidence. This evidence was then used to tie fibers from appellant’s rental car and a microstain on the axe to Ms. Pengson’s charred remains. Appellant argues the evidence is unreliable and should not have been admitted.

Scientific evidence must be both relevant and reliable to be admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, 480 (1993). Reliability involves a determination that the application of the principle produces consistent results; while validity involves a determination that the principle supports what it purports to show. Id., 509 U.S. at -, fn. 9, 113 S.Ct. at 2795, fn. 9, 125 L.Ed.2d at 481, fn. 9.

The trial judge has a “gatekeeping” responsibility in determining whether the methodology is scientifically valid and whether the methodology can be applied to this case. Id, 509 U.S. at -, 113 S.Ct. at 2798-99,125 L.Ed.2d at 482. The trial judge may consider certain factors in making this determination. These include:

1. Can the theory or technique be tested and has it been tested?

2. Has the theory or technique been subject to peer review?

3. What is the general acceptance of the theory or technique among the relevant scientific community?

4. What is the known or potential rate of error?

Id, 509 U.S. at---, 113 S.Ct. at 2798-99, 125 L.Ed.2d at 482-3. We will address each of these considerations based on the facts of this case.

Testing of the Theory or Technique

Testing involves the development of a scientific hypothesis and testing that hypothesis to determine if the results can be falsified. Id., 509 U.S. at-, 113 S.Ct. at 2796, 125 L.Ed.2d at 483. In other words, does the testing produce reliable, reproducible results? See United States v. Bonds, 12 F.3d 540, 558 (6th Cir.1993).

Dr. Pflug testified that he has conducted DNA testing using the Amp-FLP procedure for over three and one half years. During ' the last two years, he has been looking at the Apo-B region of DNA examining over 4000 samples from about 120 cases. He indicated that there are several other laboratories in Germany, Austria, and Switzerland that use this technique.

However, it is also significant that no other criminal laboratories use the Amp-FLP analysis in the Apo-B region. In fact, both the FBI and the Royal Canadian Mounted Police have specifically rejected Amp-FLP testing in the Apo-B region. Additionally, Dr. Eisenberg’s testimony indicated that numerous experts in the area of DNA testing throughout the world agreed that Dr. Pflug’s methodology of analyzing the Apo-B region yields inconclusive results.

There is no question that the scientific community is testing PCR Amp-FLP analysis with inconsistent findings. However, the military judge should have focused his analysis on the Amp-FLP process as it applies to the Apo-B region. In this narrow sub-area, Dr. Pflug and his associates appear to stand alone in their support of forensic use of ApoB analysis. I believe that Daubert contemplates something more than initial testing and development of a procedure, but less than general acceptance before it is admissible in court.

Peer Review and Publication

PCR analysis was the subject of over 1400 papers published between 1985 and 1990. At least 50 of these papers dealt with the Amp-FLP procedure. It is unclear how many papers dealt with testing in the Apo-B region but four papers written in that time frame were introduced at trial.

Daubert indicates that submission of a theory to the scientific community increases the scrutiny of the hypothesis and the possibility that flaws in the process will be discovered. Daubert, 509 U.S. at-, 113 S.Ct. at 2797, 125 L.Ed.2d at 483. Again, I believe the focus of this peer scrutiny, as anticipated by Daubert, should be on the specific analysis in the Apo-B region and not general PCR or Amp-FLP analysis. Despite the publication of only a few papers on analysis in the ApoB region, there appears to be considerable controversy about the procedure as well as outright rejection by laboratories who reviewed it.

General Acceptance

Daubert indicates that the trial judge may consider the general acceptance of the theory or principle in determining the admissibility of scientific evidence. However, this should not be the sole consideration. Id, 509 U.S. at-, 113 S.Ct. at 2796-97,125 L.Ed.2d at 483. A known technique that has attracted only minimal support within the scientific community may be viewed with skepticism. Id, 509 U.S. at-, 113 S.Ct. at 2797, 125 L.Ed.2d at 483. However, neither newness nor lack of certainty renders the evidence inadmissible per se. United States v. Stifel, 433 F.2d 431, 438 (6th Cir.1970), cert, denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971).

General acceptance involves considerations of both the theory and the methodology. Bonds, 12 F.3d at 562. Thus, in this case, it is apparent that the theory of PCR analysis is generally accepted. Testimony indicated that PCR analysis is possibly the most widely recognized technique currently used in research science. It further appears from Dr. Holland’s testimony that the methodology of Amp-FLP analysis is somewhat accepted in the scientific community but has not been admitted in court. But, based on the evidence, the methodology of Amp-FLP analysis in the Apo-B region does not meet general acceptance standards. As previously indicated, not only does no other criminal laboratory use this form of analysis, but several have also specifically rejected it. The fact that it is used in one private laboratory in the United States and several, but not all, German speaking laboratories does not overcome the evidence of its rejection by numerous others.

Known or Potential Error Rate

The record of trial contains no evidence of the error rate of this procedure. Dr. Pflug briefly discusses the fact that his laboratory is subject to a quality inspection by the German GENDAP group. He also indicated that there is proficiency testing within this GENDAP group. However, he does not describe the results of this quality testing or give any indication as to an error rate. Likewise, those experts who questioned the procedure did not discuss error rate.

Daubert also suggests that the trial judge should consider the known or potential rate of error of the procedure. Daubert, 509 U.S. at-, 113 S.Ct. at 2797, 125 L.Ed.2d at 483. When a procedure has been generally accepted, “it is implicit that the rate of error is acceptable to the scientific community as well.” Bonds, 12 F.3d at 560. On the other hand, a procedure that has not been generally accepted may have an unacceptable error rate.

To me, the error rate directly equates to the reliability of the procedure — does the analysis produce consistent results? I have been spoiled by the abundance of information available in the urinalysis area to support the reliability of that procedure. Retests, blind samples, and verification tests are routinely used to authenticate consistent results. This degree of evidence is not necessary in every case, but I find the lack of any comparable evidence in this case significant.

I am not willing to accept the unspecified quality control testing done by GENDAP as establishing an acceptable error rate without more information. Evidence of the error rate or detailed descriptions of the methods of quality control testing and its results may be available and, if so, could overcome many of the weaknesses in the analysis of the ApoB region. However, without this evidence it is virtually impossible to evaluate the reliability of the procedure in view of the other evidence questioning it.

Admissibility of the Evidence

In addition to the Daubert factors, there are several other areas that I considered prior to finding the evidence inadmissible. In general, these factors go to the responsibility of the trial judge and the overall reliability of the analysis in the Apo-B region.

First, Daubert clearly gives the trial judge gatekeeping responsibilities in determining the admissibility of the expert testimony on scientific evidence. This implies more than a mere acquiescence in the position of the proponent of the evidence and more than the use of laboratory procedures. Here, the military judge did not meet his gatekeeping responsibilities. His instructions to the members, in effect, concedes that point when he states: “Second, with respect to the PCR (Amp FLP) DNA test results in this case, there is a dispute as to its validity or value. Third, my ruling in permitting you to evaluate the evidence of the DNA test results does not mean that I have determined that such evidence has any particular value in the case.” To me, if the trial judge determines the evidence is admissible under Daubert, this implies a determination that the evidence is valid, has value, and will help the members.

Second, Daubert implies that every step in the expert’s analysis should be based on scientific knowledge which requires a step-by-step evaluation of the Daubert factors. In re Paoli R.R. Yard PCB Litigation, 35 F.3d. 717, 745 (3rd Cir.1994). “This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” Id. I do not believe, based on the totality of the evidence presented, that the Amp-FLP procedure focused on the Apo-B region meets the reliability standard of Daubert. In contrast, Judge Gamboa believes that the focus of the admissibility analysis should be on the general acceptance of the Amp-FLP procedure and not the locus of the testing in the Apo-B region. I disagree because if the testing in the Apo-B region does not produce reliable, consistent results, then the evidence should not be admissible.

Third, PCR Amp-FLP analysis in the Apo-B region is not reliable, in part, due to its subjective interpretation of the results. Although PCR analysis has been admitted in criminal trials in the United States, the particular form of testing used was the DQ-Alpha and not Amp-FLP. See Oregon v. Lyons, 124 Or.App. 598, 863 P.2d 1303 (1993); Spencer v. Commonwealth of Virginia, 240 Va. 78, 393 S.E.2d 609 (1990). A significant distinction of the DQ-Alpha procedure is that the results do not rely on the subjective interpretation of the expert. Lyons, 863 P.2d at 1309.

The results of the Amp-FLP analysis in the Apo-B region are solely interpreted through visual observation. Here, despite the fact that technicians performed the procedures, there is no evidence to suggest that anyone other than Dr. Pflug reviewed these samples or would have interpreted the results in the same manner. Dr. Eisenberg stressed that this lack of computer verification was a component of others’ rejection of the process. It is also a possible reason why Amp-FLP analysis is not used for forensic purposes and has not been admitted in any court.

I find this subjective interpretation of the results to be especially significant in a developing procedure. For example, when Dr. Pflug initially examined the samples, he identified a new allele designation (marker) that was not present in any of the prior 4000 samples he had examined in developing his comparison ladder. He called this marker a “55” because it looked like “55” was the appropriate distance above his known “53” marker. He subsequently identified other “55” markers and a “57” marker when he tested samples from Philippine nationals. He testified that other markers may exist particularly among non-Caucasian populations. Dr. Eisenberg testified that while Dr. Pflug refers to these designations as 33, 35, 37, and so forth, other scientists refer to them as 34,36, 38, and so on. This subjectivity in identifying the allele designators, the lack of cohesiveness of scientists in the field examining the Apo-B region, and the lack of a mechanical verification of the designators impact the reliability of the analysis.

Fourth, in evaluating scientific evidence there is sometimes a very fine line between methodology and conclusions. Daubert says admissibility should focus on methodology and not conclusions. Daubert, 509 U.S. at -, 113 S.Ct. at 2797, 125 L.Ed.2d at 484. However, the trial judge should not exclude evidence when there is a flaw in the expert’s investigative process that renders the conclusions incorrect unless the flaw is such that the expert’s conclusions lack good grounds to support them. In re Paoli R.R. Yard PCB Litigation, 35 F.3d at 746.

Here, the witnesses often spoke in terms that normally apply to conclusions. For example, the term “inconclusive” was frequently used. Additionally, the experts indicated their personal preferences for human controls, use of identical gels to test the substances, and other internal procedures for conducting the analysis. However, the testimony also emphasized certain technical weaknesses in the methodology and the lack of general acceptance of analysis in the ApoB region. I then considered these weaknesses coupled with the fact that all results are visually determined by one individual without any type of computer or mechanical verification. The totality of this information persuades me that the use of the term “inconclusive” encompassed more than just conclusions, but goes to the actual methodology of Apo-B analysis.

Thus, after evaluating the Daubert criteria as well as examining the evidence in this case, I conclude that the military judge abused his discretion in admitting this evidence. My opinion is limited to the facts of this case. I am not saying that the procedure and methodology of Amp-FLP analysis in the Apo-B region would not be admissible given additional evidence answering somé of my concerns.

Impact of Inadmissible Evidence

Having decided the evidence was inadmissible, I must now determine the impact of that evidence. The general rule is that reviewing courts must determine whether “there is a reasonable probability that the evidence complained of might have contributed to the conviction.” Chapman v. Califor nia, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L. Ed.2d 705 (1967), quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171; United States v. Morgan, 40 M. J. 405, 412 (C.M.A.1994). In this case, I believe the admission of this evidence did not contribute to the conviction or materially prejudice the substantial rights of the accused. The government’s case against appellant, although circumstantial, was strong and conclusive. Article 59(a), UCMJ, 10 U.S.C. § 859(a); see also United States v. Giambra, 38 M.J. 240, 242 (C.M.A.1993).

First, I note that this was an extremely well litigated trial. Every weakness of the Amp-FLP analysis in the Apo-B region was thoroughly detailed by trial defense counsel before the members. This testimony was such that I believe the members gave this evidence little or no weight in their deliberations.

Next, I believe that there is more than sufficient evidence to prove appellant’s guilt beyond a reasonable doubt independent of this evidence. Appellant possessed the motive and opportunity to kill Ms. Pengson. Motive — he wanted to break off their relationship, considered Ms. Pengson a second class citizen, and was concerned that his wife knew he had a girlfriend. Opportunity — Ms. Pengson told others she was going to meet appellant on Saturday night and appellant received a phone call from an oriental sounding woman at work late Saturday night. Additionally, the German police officer told appellant about Ms. Pengson’s death and indicated that a witness said Ms. Pengson left her house to meet appellant on Saturday night. Appellant responded that he met Ms. Pengson on Saturday. While he did not state when he met her, a reasonable implication based on the prior discussion is that he met Ms. Pengson on Saturday night. If he met her on Saturday night, this would make him the last known person to see her alive. The autopsy report, while inconclusive as to the time and manner of death, indicated that Ms. Pengson’s stomach contents revealed food similar to what she had eaten earlier Saturday evening. The coroner speculated that she died within 4-6 hours of her last meal. Additionally, appellant’s comings and goings from Thursday through Monday were unusual, frequently contradictory, and his known whereabouts were such that he could have murdered Ms. Pengson and disposed of her body.

It is difficult to determine whether appellant had the means to murder Ms. Pengson as the exact manner of death is unknown. However, there is evidence that the head and hands were severed with an ax or machete. An ax was found in appellant’s work area. This ax was distinctive because it was not dusty or in its protective case as were the others. Additionally, a screening test using a Heglar stick revealed the presence of blood on the ax.

Other circumstantial evidence can also be interpreted as pointing towards appellant’s guilt. On Friday, he rented a car to make a trip to Hannover, yet he was scheduled to work at his part time job that weekend. He told some individuals that his car was not working properly, but loaned it to a friend with car problems. The friend had no mechanical problems with the car. The rental car was clean when he picked it up, but was returned with a dark, dry, crusty spot in the trunk.

Additionally, the evidence indicated that hairs found in the ladies rest room in the building where appellant worked matched hairs identified as being Ms. Pengson’s. These hairs were distinctive both because of a bend and a cut edge.

Several other incidents over the weekend are also questionable. On Sunday evening, about 2300 hours, appellant called his military supervisor and asked for Monday off because he was working Sunday night. However, appellant ended his Sunday shift at about 1800 hours. Around 0330 hours on Monday morning, appellant drove the rental car into his work area claiming he had to work on his car. His personal vehicle was not in this area. He left about 45 minutes later.

On Monday morning about 0700 hours, a witness identified a car similar to appellant’s rental car leaving the area where the corpse was found. However, another witness said the rental car was not similar to the observed car. Appellant returned the rental car about 0950 and subsequently picked up the keys for his personal car from his friend. The odometer reading of the rental car reflected 554 kilometers. This reading may be consistent with travel to the location of the corpse which was about 30 minutes from base. It is inconsistent with appellant’s initial stated use of seeing a friend in Hannover which was a round trip of 704 kilometers from base.

Finally, while confined in a German prison, appellant told a German police officer that he could get the death penalty if tried in an American court. He asked the officer what would happen to him if he were tried in a German court for the offense. The officer told him he could not receive the death penalty. Appellant then replied that he would be better off in a German court. Again later, he questioned what a prisoner did in a German jail. During this same period appellant indicated that when he thought of Ms. Pengson, “his head was empty and he only sees black.” Appellant never denied having anything to do with Ms. Pengson’s murder.

In conclusion, I find that the record contains insufficient evidence of reliability to support the military judge’s decision to admit the evidence of Amp-FLP testing in the Apo-B region. However, I find no reasonable probability that this DNA evidence contributed to the conviction because of the inherent weaknesses in the analysis and the overall strength of the government’s case.

DIXON, Chief Judge

(dissenting):

I am not satisfied that appellant’s conviction was correct in law and fact and therefore believe we should set aside his conviction. I share Judge Schreieris view that the military judge erred in admitting that portion of Dr. Pflug’s testimony concerning the testing of the blood stains found on the ax seized from Building 243 and those found on the fibers removed from the automobile appellant had rented. The arguments she advances in her concurring opinions regarding the inadmissibility of this key evidence are compelling. However, I disagree with her concerning the impact of the military judge’s ruling on the ultimate outcome. The evidence against appellant was entirely circumstantial. Taken as a whole, it certainly suggests the appellant possessed a motive and had sufficient opportunities to commit this crime. However, motive and opportunity alone are rarely sufficient to convict an accused of murder. Generally, there must be some evidence linking the accused to the crime itself. The link was established here by the scientific evidence derived from the ax and the rented automobile. Unlike Judge Schreier, I am not convinced the members would have convicted appellant in the absence of that evidence.

This case involves two separate and distinct types of DNA evidence. At trial, the defense moved to have all DNA evidence pertaining to this case excluded. I believe the military judge erred by failing to distinguish between the DNA evidence which was shown to be relevant and reliable from DNA evidence which was not shown to be relevant and reliable. The DNA evidence used to identify the corpse as Ms. Pengson was obtained by the technique called RFLP. There was no dispute in this case that the RFLP was properly conducted and the RFLP technique is widely accepted as producing scientifically reliable results. On the other hand, the DNA evidence pertaining to blood stains found on the ax and on fibers taken from the rental car was derived from a different technique called PCR. The preponderance of the evidence offered at trial suggests that the type of PCR utilized by Dr. Pflug (specifically Amp-FLP analysis in the Apo-B region) does not produce scientifically reliable results.

The admissibility of scientific evidence at courts-martial is governed by Mil.R.Evid 702. The rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In determining whether to admit scientific evidence, trial judges are expected to exercise a “gatekeeping” function. In describing the role of the trial judge, the Supreme Court in Daubert v. Merrell Dow Pharma ceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) stated:

That the Frye test was displaced by Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

Unlike what is contemplated by Daubert, I believe the military judge in this case ignored the preponderance of the evidence concerning the scientific validity of this technique and erroneously permitted the fact finders to determine its validity. In effect, he allowed the fact finders to perform the “gatekeeping” function. In ruling on the admissibility of the DNA evidence at trial, the military judge addressed the issue of the PCR test as follows:

With respect to the PCR test, the application of that test yielded results which may or may not be accepted, but on the facts of this case in an emerging area not yet validated in the United States and where protocols may be in dispute among experts in the field, it is for the fact finders to determine.

I contend the ruling of the military judge admitting the DNA testimony concerning the blood stains on the ax and fibers from the rental car materially prejudiced the appellant. The mere fact that the technique had never been admitted in any criminal case in the United States is alone enough to call for close scrutiny of the judge’s ruling. However, it is not the relative newness of the technique, or the absence of known error rates, that most concerns me. Nor is it the fact that Dr. Pflug!s laboratory is the only crime lab using the test in question. Rather, it is the fact that the preponderance of the testimony presented at the Article 39(a) hearing suggests that PCR technique using the Amp-FLP analysis of the Apo-B region does not produce forensically valid results.

Specifically, there was undisputed testimony that both the FBI and the Royal Canadian Mounted Police had rejected the use of Amp-FLP testing in the Apo-B region after experimenting with it and finding it had a number of problems for use in forensic analysis. Dr. Eisenberg, the defense consultant who was recognized as an expert in the field of DNA, testified that in his opinion “the Amp-FLP analysis of the Apo-B region relating specifically to the ax and any material derived from the car either by tape lifts or from the trunk must be viewed as uninterpretable, inconclusive, and no criteria either match or non-match can be applied to that analysis.” Dr. Eisenberg, an active collaborative consultant with both the FBI’s DNA laboratory as well with the Royal Canadian Mounted Police equivalent laboratory in Canada, explained that his major concern with the reliability of the test was the absence of a “known positive control.” When asked as an expert in the area of DNA forensics if he thought allowing the information relating to the ax and car to come before the jury would assist them, he responded:

No, sir, I do not think it would assist them. I think it would in fact not be proper because I don’t believe as a scientist that there’s any basis for any interpretation. The fact that things may visually appear similar is by no means a sufficient criteria for the evaluation of a match or no match.

Even more significant in my view is the fact the government’s own DNA consultant, Dr. Holland, testified that, as a scientist in the American community, he would have to report the tests performed from the ax and car fibers as “inconclusive.” He stated American and Canadian laboratories would also have reported the tests as “inconclusive.” In the final analysis, the admissibility of this evidence rests on the opinion of one scientist, who claims contrary to the experience of all other laboratories, that he could call the test results a “match” on the basis of visible observations alone. Despite the overwhelming evidence that no valid results could be reached from Dr. Pflug’s PCR technique using the Amp-FLP analysis of the Apo-B region, the military judge allowed the fact finders to reach their own conclusions about the validity of the scientific tests. I believe he not only failed to perform the required “gatekeeping function” but erred in permits ting the fact finders to consider highly unreliable scientific evidence. The fact finders are well equipped to determine what conclusions should be drawn from valid scientific evidence but cannot be expected to determine whether or not novel scientific evidence is valid.

I will not engage in speculation as to whether members would have found appellant guilty of murder had the DNA evidence from the ax and car fibers not been admitted. Since this was the only evidence that provides some direct link between the appellant and the crime, I cannot say its erroneous admission was harmless error.

The prosecution could not prove the appellant was guilty by direct evidence. Instead it relied upon bits and pieces of circumstantial evidence that pointed to appellant’s guilt. They were able to establish a motive. Moreover, they established the victim was last seen on Saturday evening when she departed a party with the stated intention of meeting appellant. They were able to point to inconsistencies in appellant’s account concerning his plans for the weekend, unusual visits to his duty locations during the weekend, and an implausible explanation of why he rented a car. A witness also testified he saw a car bearing some similarities to the one appellant rented rapidly leaving the area where the victim’s torso was found early on Monday morning. However, by far, the strongest pieces of circumstantial evidence relied upon by the prosecution to convict appellant were the results of DNA tests performed by Dr. Pflug on microstrains obtained from the ax and car fibers. Without this critical evidence, which Judge Schreier and I believe should have been ruled inadmissible, I am not convinced the members would have found the evidence sufficient beyond a reasonable doubt to convict appellant. Accordingly, I would set aside appellant’s conviction and authorize a rehearing.  