                       UNITED STATES, Appellee

                                    v.

           Ivor G. LUKE, Hospital Corpsman Second Class
                       U.S. Navy, Appellant

                              No. 05-0157

                   Crim. App. No. NMCCA 200000481

       United States Court of Appeals for the Armed Forces

                        Argued October 4, 2010

                       Decided January 25, 2011

ERDMANN, J., delivered the opinion of the court, in which BAKER,
J., joined. RYAN, J., filed a separate concurring opinion.
STUCKY, J., filed a separate opinion concurring in part and
dissenting in part. EFFRON, C.J., filed a separate dissenting
opinion.

                                 Counsel

For Appellant: Lieutenant Michael R. Torrisi, JAGC, USN
(argued); Lieutenant Brian D. Korn, JAGC, USN.

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Brian K. Keller, Esq.

Military Judge:   Charles A. Porter




       This opinion is subject to revision before final publication.
United States v. Luke, No. 05-0157/NA

       Judge ERDMANN delivered the opinion of the court.

       A general court-martial composed of members convicted

Hospital Corpsman Second Class Ivor G. Luke, contrary to his

pleas, of two specifications of indecent assault upon Seaman

Recruit TN in violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2000).1    Luke was sentenced to

confinement for two years and a bad-conduct discharge.      The

convening authority approved the sentence as adjudged and the

United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and sentence.    United States v. Luke, No.

NMCCA 200000481, 2004 CCA LEXIS 218, at *16, 2004 WL 2187577, at

*6 (N-M. Ct. Crim. App. Sept. 28, 2004).

       Upon Luke’s appeal to this court in 2005, we initially

granted two evidentiary issues and later granted a supplemental

issue as to whether Luke’s conviction could be affirmed in light

of newly discovered evidence.2    Following two United States v.


1
  Prior to trial the Government dismissed with prejudice three
specifications of indecent assault and three specifications of
indecent language involving other victims. Luke was found not
guilty of one specification of sodomy and two specifications of
indecent language involving Seaman Recruit TN.
2
    Review was initially granted on the following issues:

       I.    Whether the lower court erred when it upheld the trial
             judge’s exclusion, during cross-examination, of an
             alleged victim’s abortion after it became relevant and
             material rebuttal to the victim’s testimony.

       II.   Whether the lower court erred when it upheld the
             Government’s failure to disclose evidence that it had

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United States v. Luke, No. 05-0157/NA

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), hearings and two

Court of Criminal Appeals decisions, the case is before this

court for the third time.   We now review the following three

issues:   whether newly discovered evidence would probably have

produced a substantially more favorable result; whether the

military judge erred when he held that the Government was not

required to disclose Prosecution Exhibit (PE) 17 to the defense

in pretrial discovery; and whether Luke’s due process rights

have been violated by the lengthy post-trial processing of his

appeal.   We hold that the newly discovered evidence would

probably not have produced a substantially more favorable

result; if the military judge erred in holding that the

Government was not required to provide the defense with PE 17 in

pretrial discovery, it was harmless error; and Luke’s post-trial




           prepared to use on re-direct examination of a
           Government witness.

United States v. Luke, 61 M.J. 278 (C.A.A.F. 2005) (order
granting review).

The supplemental issue was:

     Whether Appellant’s conviction can be affirmed by this
     Court in light of the fact that evidence of fraudulent
     testing of DNA has been newly discovered.

United States v. Luke (Luke I), 63 M.J. 60, 61 (C.A.A.F. 2006);
United States v. Luke, 62 M.J. 328 (C.A.A.F. 2005)
(interlocutory order granting motion to file a supplemental
issue).

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United States v. Luke, No. 05-0157/NA

due process rights were not violated.     We therefore affirm the

Navy-Marine Corps Court of Criminal Appeals.

                             DISCUSSION

      As the three issues before the court present discrete legal

and factual matters, we will set forth the facts and procedural

background relevant to each in the discussion of the individual

issues.

I.   Whether the newly discovered evidence of Mills’ misconduct
     renders his conviction unreliable

Factual and Procedural Background:

      The situation giving rise to Luke’s conviction took place

when he was serving as a hospital corpsman aboard the USS Port

Royal.    Luke was accused of indecent assault upon a shipmate,

Seaman Recruit TN, when she sought a pelvic exam from him after

Luke diagnosed her boyfriend, Fireman RA, another shipmate, with

a sexually transmitted disease.   Luke contested the charges and

maintained that he did not examine TN nor did he commit an

indecent assault upon her.   At Luke’s court-martial TN and RA

both testified to a series of events which supported the

indecent assault specifications and which Luke denied.3    The

defense theory of the case was that TN and RA made up the

allegations against Luke in order to avoid the consequences of




3
  The underlying facts were detailed in this court’s 2006
decision and need not be repeated here. Luke I, 63 M.J. at 61.

                                  4
United States v. Luke, No. 05-0157/NA

the command discovering their romantic relationship, which was

in violation of ship policy.

     In addition to testimony from TN and RA, the Government

presented testimony from four Naval Criminal Investigative

Service (NCIS) investigators and two experts from the United

States Army Criminal Investigation Laboratory (USACIL).    The

USACIL witnesses testified about serological and DNA testing

performed on several items removed from the sleeping quarters of

the medical compartment on the USS Port Royal where TN alleged

the incident took place, as well as a bra and panties worn by TN

during the incident.

     Phillip Mills, then a forensic chemist at USACIL, conducted

the serology4 analysis of the evidence in Luke’s case.    Mills

examined a bedsheet, a bra, a pair of panties, and a pillowcase

for serological evidence.   At Luke’s court-martial, Mills

testified about stains he found on the sheet and the bra which

revealed the presence of amylase and epithelial cells.    Mills

did not find any stains of consequence on the pillowcase or the

panties.



4
  Serology is “the branch of science dealing with the properties,
uses, and preparation of serums. A serum in this sense is a
body fluid containing substances useful in the diagnosis,
prevention, and treatment of disease.” 5 J. E. Schmidt,
Attorneys’ Dictionary of Medicine and Word Finder S-119 (2010).
As used here, Mills explained that “serology” was the
examination of body fluid stains to determine the biochemical
makeup of the stain.

                                 5
United States v. Luke, No. 05-0157/NA

     Mills testified that amylase is an enzyme that is found in

most body fluids in low concentrations but is found in high

concentrations in saliva.    Epithelial cells are cells forming

epithelium, the lining of body cavities and the covering of the

skin and mucous membranes.   2 Schmidt, supra note 4, at E-164.

Mills explained that epithelial cells are found throughout the

body and contain DNA.

     Mills testified that the amylase and the epithelial cells

on the bedsheet were consistent with saliva and vaginal

secretions.   The amylase on the bra was found in a high enough

concentration that it was “indicative of saliva.”   Mills further

testified that the epithelial cells found on the bra could have

come from TN simply wearing the bra.    He sent those stains to

Marilyn Chase, another USACIL examiner, for DNA analysis.

     Chase was qualified as an expert at Luke’s court-martial in

the forensic application of serological and DNA analysis.   She

testified about the techniques used to conduct DNA analysis, the

quality control procedures in place at USACIL, as well as the

peer review process for DNA analysis at USACIL.   Chase examined

TN’s bra, her panties, a cutting from the sheet, and a cutting

from a blanket.   Chase testified that “[w]hen I analyzed the DNA

in the sheet, it was consistent -- or -- with a mixture -- what

you see in a mixture of the DNA profiles that were also seen in

the blood standards of Luke and [TN].”   Regarding the sample



                                  6
United States v. Luke, No. 05-0157/NA

found on the bra worn by TN, Chase testified that her analysis

revealed DNA types from at least three people on the bra which

were consistent with the DNA profiles of TN, Luke, and RA.5

Defense counsel questioned Chase about the possibility of

contamination of the samples in testing and the possibility of

degradation of the specimens.   Defense counsel also raised the

possibility of exacerbation of degradation of a mixed sample

when there are a number of different profiles in a specimen.     On

redirect examination, trial counsel questioned Chase about the

specimens in Luke’s case and Chase stated “my controls worked

properly in this case.   I saw no indication of contamination in

any of my reagents or any of the other controls in this case.”6

     The testimony given by Mills and Chase as to the presence

of saliva on TN’s bra was relied upon by the Government to

support TN’s account of the incident (that Luke had sucked on

her breast during the examination).   The Government relied on

the DNA on the bedsheet as proof that the encounter took place




5
  Chase testified that the DNA analysis on the panties did not
reveal DNA profiles of anyone other than TN.
6
  At the first DuBay hearing, when asked whether she could tell
whether the evidence provided by Mills had been contaminated,
Chase replied, “I couldn’t tell if it’d been contaminated when I
received the evidence and inventoried it, it didn’t look like
anything unusual. . . . I couldn’t tell unless there was
something actually physically wrong.”

                                 7
United States v. Luke, No. 05-0157/NA

as TN described, contradicting the defense’s position that any

evidence of saliva and Luke’s DNA on the sheet resulted because

he had masturbated and then sucked his thumb on the bed that

same day.    Luke was subsequently found guilty of two

specifications of indecent assault in violation of Article 134,

UCMJ.

        In 2005, six years after Luke’s court-martial and one month

prior to argument on the two issues originally granted by this

court, USACIL issued a memorandum to all staff judge advocates

informing them that disciplinary action had been taken against

Phillip Mills, the USACIL forensic examiner who had conducted

the serological examination in this case.    The USACIL memorandum

noted that the disciplinary action was taken after it had been

discovered that Mills had cross-contaminated and/or switched

samples within and between several cases, made a false data

entry and altered documentary evidence, falsely stated the

results of an examination which he had not performed, and

misrepresented work he had performed.

        In response to a defense motion, this court granted a

supplemental issue addressing the newly discovered evidence of

Mills’ misconduct and its possible impact on the case.    Luke I,

63 M.J. at 61; Luke, 62 M.J. 328.      We set aside the decision

and ordered further inquiry under DuBay, to determine “whether a

Government forensic examiner contaminated Appellant’s DNA sample



                                   8
United States v. Luke, No. 05-0157/NA

or otherwise falsified pertinent test results.”    Luke I, 63 M.J.

at 61.    A DuBay hearing was subsequently conducted on June 2 and

8, 2006.7    United States v. Luke, 64 M.J. 193, 194 (C.A.A.F.

2006) (interlocutory order, Appendix A).

     Based on testimony and evidence presented at the hearing,

the DuBay military judge found that “Mr. [Mills] demonstrated a

pattern of mistakes in conducting DNA analysis” but “[n]o

evidence was presented that Mr. [Mills] ever altered any results

to falsely show the presence or absence of DNA in a sample, or

that his failure to follow proper procedures was an attempt to

improperly influence or alter the outcome of DNA analysis.”       Id.

at 196.     The DuBay military judge found “Mr. [Mills] was

proficient in performing serology analysis.    He had a full

understanding of the standard procedures for conducting serology

casework.”    Id.   He also found that Mills only performed the

serology portion of the analysis in Luke’s case and Chase did

the DNA analysis on the samples that Mills prepared.    Id. at

196-97.     The DuBay military judge found that Mills did not

conduct the DNA analysis and therefore never had an opportunity

to falsify the results.    Id. at 197.   He also found that there


7
  Following the discovery of Mills’ misconduct, the U.S. Army
Criminal Investigation Command began a remediation project to
review/retest 465 cases on which Mills had worked between 1995
and 2005. This investigation had not been concluded at the time
of the first DuBay hearing. The investigation also included two
independent DNA investigators who were to review Mills’ work and
USACIL’s procedures.

                                   9
United States v. Luke, No. 05-0157/NA

was no possibility of cross-contamination between the bedsheet

and the bra.   Id.

     Pursuant to the remand order, the DuBay military judge’s

findings were returned directly to this court and after further

briefing on the supplemental issue, we remanded the case to the

Court of Criminal Appeals for further consideration.   United

States v. Luke, 65 M.J. 5 (C.A.A.F. 2007) (summary disposition).

On May 27, 2008, the Court of Criminal Appeals ordered a second

DuBay hearing to determine the status of USACIL’s internal

investigation and to examine the two independent DNA experts as

to the possible impact of Mills’ misconduct on Luke’s case.

United States v. Luke, No. NMCCA 200000481, slip op. at 4 (N-M.

Ct. Crim. App. May 27, 2008).   The second DuBay decision

reviewed a draft of the USACIL report and noted that the final

report was due on September 30, 2008.   The second DuBay military

judge concluded that “[n]o prior facts established by the prior

Dubay [sic] hearing were modified or altered.”

     Relying on the DuBay hearings as well as the USACIL final

report on Mills’ misconduct released on September 30, 2008, the

Court of Criminal Appeals issued an opinion affirming the

original findings and sentence on July 31, 2009.   United States

v. Luke, No. NMCCA 200000481, 2009 CCA LEXIS 270, at *24, 2009

WL 2345124, at *8 (N-M. Ct. Crim. App. July 31, 2009).   The CCA

found:



                                10
United States v. Luke, No. 05-0157/NA

     The facts elicited both during the USACIL review of
     Mr. Mills’ work and during the DuBay hearings
     demonstrate that Mr. Mills’ DNA analysis while at
     USACIL suffered from a number of errors.
     Notwithstanding the seriousness of these errors, as
     appropriately commented on by the military judge
     during the second DuBay hearing, there is no evidence
     that Mr. Mills had any involvement in the appellant’s
     case beyond the serological analysis. . . . [T]he
     evidence relating to deficiencies in Mr. Mills’ DNA
     analysis would be of limited probative value in
     assessing the accuracy of his serological examination
     in the appellant’s case and, albeit potential
     impeachment evidence, would not probably produce a
     substantially more favorable result for the accused.

Id. at *14-*15, 2009 WL 2345124, at *5 (citation, footnote, and

quotation marks omitted).

Analysis:

     Rule for Courts-Martial (R.C.M.) 1210(f)(2)8 sets forth the


8
  Article 73 provides that the accused may petition the Judge
Advocate General for a new trial on the grounds of newly
discovered evidence within two years after the convening
authority approves the sentence. Article 73, UCMJ, 10 U.S.C. §
873 (2006). In his separate opinion, Judge Stucky argues that
this time limit prohibits this court from exercising
jurisdiction as to Issue I. United States v. Luke, __ M.J. __
(5) (C.A.A.F. 2011) (Stucky, J. concurring in part and
dissenting in part). Because this issue reached us on direct
review under Article 67, UCMJ, 10 U.S.C. § 867 (2006), we
disagree. When the evidence of Mills’ misconduct was revealed
to the defense while Luke’s appeal was pending before this
court, Luke’s appellate defense counsel filed a motion for a
supplemental issue specifically noting that the procedure for
granting a new trial based on newly discovered evidence “is to
petition the Judge Advocate General for a new trial ‘within 2
years after approval by the convening authority.’” Luke’s
appellate counsel explained, “[b]ecause the convening authority
approved Appellant’s sentence over two years ago, Appellant is
seeking relief from this court.” Indeed, in Luke I, this court
granted the supplemental issue to determine whether the results
of Luke’s court-martial were reliable in light of newly
discovered evidence. 63 M.J. at 61. Therefore this case is not

                               11
United States v. Luke, No. 05-0157/NA

grounds for granting a new trial based on newly discovered

evidence, specifically:

     (2)    Newly discovered evidence. A new trial shall not
            be granted on the grounds of newly discovered
            evidence unless the petition shows that:

            (A)   The evidence was discovered after the trial;

            (B)   The evidence is not such that it would have
                  been discovered by the petitioner at the
                  time of trial in the exercise of due
                  diligence; and

            (C)   The newly discovered evidence, if considered
                  by a court-martial in the light of all other
                  pertinent evidence, would probably produce a
                  substantially more favorable result for the
                  accused.

     “[T]he reviewing court must make a credibility

determination, insofar as it must determine whether the ‘newly

discovered evidence, if considered by a court-martial in the

light of all other pertinent evidence, would probably produce a

substantially more favorable result for the accused.’”    United

States v. Brooks, 49 M.J. 64, 69 (C.A.A.F. 1998) (citation

omitted).   “The reviewing court does not determine whether the

proffered evidence is true; nor does it determine historical

facts.   It merely decides if the evidence is sufficiently

believable to make a more favorable result probable.”    Id.




before the court under a petition filed pursuant to Article 73,
UCMJ, and as both parties agree that the framework of R.C.M.
1210 should govern our analysis, we proceed under the grant of
the supplemental issue in Luke I.

                                  12
United States v. Luke, No. 05-0157/NA

     The parties agree that subsections (A) and (B) of R.C.M.

1210(f)(2) are satisfied but disagree as to subsection (C).

Luke argues that the newly discovered evidence of Mills’

“misconduct, dishonesty and sloppiness” would probably produce a

more favorable result at a new trial.   Luke urges this court to

set aside the findings and sentence because the newly discovered

evidence attacks the reliability of the Government’s scientific

analysis and raises questions about the “conclusions that formed

the bedrock of Appellant’s conviction.”

     The Government counters that the impeachment evidence of

Mills’ misconduct is not an adequate basis to convene a new

court-martial because the new evidence does not refute an

essential element of the Government’s case.   In light of all of

the other evidence presented at Luke’s court-martial, the

Government argues that it is unlikely that impeachment of Mills

would result in a more favorable outcome for Luke.

     At the first DuBay hearing, six current and former

employees of the USACIL testified, including Mills and Chase.

The findings of fact and conclusions of law of the military

judge following the DuBay hearing contained a number of specific

findings as to the procedures Mills followed in conducting the

serological examination and included the following:

     29. Mr. [Mills] demonstrated a pattern of mistakes in
     conducting DNA analysis, and on at least one occasion,
     he attempted to cover up his mistake by making a false
     data entry.


                               13
United States v. Luke, No. 05-0157/NA


     30. No evidence was presented that Mr. [Mills] ever
     altered any results to falsely show the presence or
     absence of DNA in a sample. Or that this failure to
     follow proper procedures was an attempt to
     [im]properly influence or alter the outcome of the DNA
     analysis in any of the cases.

     31. It is evident, however, that Mr. [Mills] had
     significant problems with the DNA analysis process,
     which calls into question the forensic reliability of
     the results of his DNA casework.

     32. Mr. [Mills] disciplinary and proficiency problems
     were all related to his performance of DNA analysis.
     Mr. [Mills] had never demonstrated a lack of
     proficiency in any of his other duties.

     33. Mr. [Mills] was proficient in performing the
     serological analysis. . . .

     34. In Appellant’s case, Mr. [Mills] performed the
     serology portion, but did not conduct any of the DNA
     analysis.

     35. Mr. [Mills] understood the standard procedure for
     conducting serology analysis, and followed it in
     Appellant’s case.

          . . . .

     43. The presence of Appellant’s DNA on the bra can be
     explained in one of three ways: a) Appellant came
     into contact with the bra sometime prior to it being
     collected as evidence; b) the bra became contaminated
     after it was collected as evidence by coming into
     contact with Appellant’s DNA from another sample; or
     c) the results were falsified.

     44. With respect to Mr. [Mills], he did not conduct
     the DNA analysis, so he did not have the opportunity
     to falsify the results. Also, he had no motive to
     falsify the results, such as the desire to cover up a
     mistake, as in the documented case. Also, no evidence
     was presented that Ms. [Chase] or anyone else ever
     sought to falsify the results.




                               14
United States v. Luke, No. 05-0157/NA

     45. The panties could not have contaminated the bra
     with Appellant’s DNA, because the Appellant’s DNA was
     not present on, the panties.

     46. Neither the bed sheet or any other item could
     have contaminated the bra during the serology portion,
     because the sample of the bra was cut and sealed in a
     test tube before the other items were opened.

     47. The bra was not contaminated with Appellant’s DNA
     during the serology portion of the forensic analysis,
     and the results of the DNA analysis were not
     falsified.

Luke, 64 M.J. at 196-97.    Based on the evidence presented at the

DuBay hearing, none of these findings could be found to have

been clearly erroneous.    However, viewed in light of the details

which emerged in USACIL’s report on Mills’ misconduct which was

issued two years after the first DuBay hearing, Findings 32 and

33 of the first DuBay military judge, regarding Mills’

proficiency in serological analysis, are called into question.

     There is support for Luke’s argument that, in affirming the

DuBay military judge, the CCA overlooked the evidence from the

USACIL investigation that Mills was engaged in misconduct during

the time period Luke’s evidence was examined by USACIL.   The

primary focus of USACIL’s report on Mills’ misconduct was his

DNA analyses performed between 2000 and 2005 “because of the

increased potential for finding case samples still available for

retesting” and “[t]his was also the period in which Mr. Mills




                                 15
United States v. Luke, No. 05-0157/NA

performed a majority of his DNA casework.”9   The report did,

however, review Mills’ serology work from 1995 through 1999 and

revealed “thoroughness issues” with his serological analyses

during the time period when Luke’s sample was analyzed.

     Mills conducted serological analyses for thirty-seven Navy

cases between 1995 and 1999.   Of those thirty-seven cases,

investigators found fifteen cases in which a review of Mills’

analysis revealed “thoroughness issues.”   The report explained:

     This review identified a lack of thoroughness in the
     work performed by Mr. Mills. Mr. Mills did not
     examine all the biological swabs and smears submitted
     for examination. This also resulted in him spending
     less time on examinations. He was not properly
     screening cases because of his lack of thoroughness
     and the shorter times spent on examinations. . . .
     [H]is screening techniques my [sic] have resulted in
     some questionable negative results in these cases.

Despite these thoroughness issues and the report’s conclusion

that Mills’ screening techniques may have resulted in some

questionable negative results during this time, the report did

not contain any evidence of contamination or false reporting in

Mills’ serological analysis between 1995 and 1999.   Notably, the

report indicated that Mills’ thoroughness issues may have

resulted in negative findings where there may have in fact been

forensic evidence present.   “[Mills] had forty-nine negative



9
  The report found that the first instance of Mills’ DNA false
documentation was in 2002, four years after Luke’s 1998 court-
martial. The report found no cases with “DNA issues” for the
time between 1995 and 1999.

                                16
United States v. Luke, No. 05-0157/NA

cases in the period from 1995-2005.   His examination of evidence

was incomplete, rushed and not properly screened.   Consequently

it is doubtful that all forty-nine of these cases were

completely negative.”

     Based on USACIL’s final report, the DuBay military judge’s

determination that Mills was proficient in serological analysis

is clearly erroneous.   Mills’ “thoroughness issues” reflect that

he did mishandle evidence when he conducted serological analyses

during the period when Luke’s evidence was processed by the lab.

However, the other findings of the DuBay military judge as to

Mills’ handling of Luke’s sample and the lack of evidence of

contamination are not clearly erroneous and are therefore upheld

by this court.10

     Luke argues that the testimony of Chase and Mills was at

the core of his conviction because it “assigned instant

credibility to [TN]’s story” which was a critical issue in an

“otherwise shaky” case.   However, while the DNA evidence may

have corroborated TN’s story, it was not what Military Rule of

Evidence (M.R.E.) 608 defines as credibility evidence.    See

M.R.E. 608(a) (“The credibility of a witness may be attacked or




10
  The second DuBay military judge’s findings are also clearly
erroneous to the extent that he found that no prior fact
established by the prior DuBay hearing were modified or altered
as a result of the USACIL report.

                                17
United States v. Luke, No. 05-0157/NA

supported by evidence in the form of opinion or reputation. . .

.).   Luke also alleges that the CCA incorrectly deemed the newly

discovered evidence “merely” impeachment evidence.    However,

using evidence of Mills’ lack of thoroughness in his serological

examinations and his mishandling of evidence during his DNA

examinations to attack his credibility would indeed amount to

impeachment evidence.   See United States v. Banker, 15 M.J. 207,

210 (C.M.A. 1983) (“Impeachment can be defined as an attack on

the credibility or believability of a witness.    In general, it

is a process of explaining away a witness’ testimony as to the

existence of a fact at issue in a trial.”) (citations omitted).

Regardless of how the CCA may have classified the DNA evidence,

Luke is correct that Mills’ and Chase’s testimony supported the

Government’s theory of the case.     However, Luke’s argument that

TN’s “credibility was intertwined with the credibility of the

DNA evidence” goes too far.   This is not a case where the

evidence of newly discovered evidence would have “substantially

impeached the prosecutrix’ testimony on a material matter.”

United States v. Williams, 37 M.J. 352, 354 (C.M.A. 1993).

      Luke also argues that there probably would be a different

result at a new trial because the members would have no

confidence that Mills had not contaminated the evidence, or,

more broadly, that his misconduct would render him such a

completely discredited witness that the members would not



                                18
United States v. Luke, No. 05-0157/NA

believe him on any issue.    While there is no evidence of any

alleged contamination during the serological examination, such

contamination could have only occurred in one of two ways:      the

sheet and bra may have been cross-contaminated; or Mills took

blood from Luke’s sealed blood sample and contaminated the

evidence during his serological examination.    However, the

military judge at the first DuBay hearing found that neither the

bedsheet nor the bra could have been contaminated by other items

because “the sample of the bra was cut and sealed in a test tube

before the other items were opened.”    Luke, 64 M.J. at 197.

Luke has not established that this finding is clearly erroneous.

     As to the possibility that Mills intentionally contaminated

the evidence with Luke’s DNA from Luke’s blood sample, there is

no evidence from either the DuBay hearing or the USACIL report

that Mills intentionally contaminated a sample in order to

support a prosecution.11    There is no need to open or examine an

individual’s blood sample during a serological examination of

body fluids so the chance of contamination caused by a lack of


11
  Luke cites two state cases to support his argument that Mills’
misconduct would completely undermine the validity and
reliability of all of his forensic work. In re Investigation of
the West Virginia State Police Crime Lab., 438 S.E.2d 501 (W.
Va. 1993); State v. Gookins, 637 A.2d 1255 (N.J. 1994). In both
of those cases, however, the analyst/arresting officer
repeatedly falsified data resulting in more convictions. In re
W. Va. State Police Crime Lab., 438 S.E.2d at 503; Gookins, 637
A.2d at 1257. No evidence of falsification of evidence based on
a motive to increase convictions has been established in this
case.

                                  19
United States v. Luke, No. 05-0157/NA

thoroughness is diminished.    Nor is there any evidence that

Luke’s blood sample was ever examined or opened by Mills during

the serological examination.   While it is clear that Mills had

“thoroughness” issues, those issues appear to have resulted from

sloppiness and undue haste, not intentional contamination.

      Luke also analogizes this court’s decision in United States

v. Webb, 66 M.J. 89 (C.A.A.F. 2008), to Luke’s case because

“‘evidence that the observer, a link in the chain of custody,

had been punished for dishonesty’ may have raised questions

about the integrity of the appellant’s urinalysis.”    Luke argues

that the analysis for Webb and Luke’s cases must be the same.

Webb, however, is distinguishable from the instant case.     In

Webb, we held merely that a military judge did not abuse her

discretion in granting a defense motion for a new trial.    Id. at

93.   We did not hold that a new trial was actually required.

Luke also relies on our case law for the proposition that “[a]

petition for a new trial may rest upon newly discovered evidence

that would ‘substantially impeach[]’ critical prosecution

evidence ‘on a material matter.’”     United States v. Sztuka, 43

M.J. 261, 268 (C.A.A.F. 1995) (quoting Williams, 37 M.J. at 354)

(alteration in original).   While evidence of Mills’ misconduct

would certainly have provided impeachment evidence as to Mills’

competence, it was attenuated in time and relevance.    Luke does

not dispute Chase’s analysis of the DNA on the sheet and TN’s



                                 20
United States v. Luke, No. 05-0157/NA

bra but rather argues that evidence of Mills’ misconduct in

other cases may have created a doubt in the members’ minds as to

Mills’ overall competency or convinced them that he

intentionally or negligently contaminated the evidence with

Luke’s DNA during the serological analysis.   As noted, the

serological evidence was not the only evidence the Government

presented in Luke’s case.   Seaman Recruit TN and Fireman RA both

testified for the Government contrary to Luke’s testimony.     Our

task is to determine “whether the ‘newly discovered evidence, if

considered by a court-martial in the light of all other

pertinent evidence, would probably produce a substantially more

favorable result for the accused.’”   Brooks, 49 M.J. at 69

(citation omitted).

     The newly discovered evidence as it relates to this case

goes to the performance of the serology screening and not the

DNA tests.   Unless Luke can show on appeal a probability of

contamination in the serology screening that would account for

his DNA being present on the bra and blanket, he is left with

the prospect of rebutting compelling DNA statistics12 based on a

defense that his prior masturbation and thumb-sucking resulted

in the presence of his DNA in TN’s bra.   Viewing the entire

record of trial, to include the newly discovered evidence, the


12
  Dr. Basten testified that it was 290,000 times more likely
that the DNA found on the bra was from TN, RA, and Luke than TN,
RA, and an unknown contributor.

                                21
United States v. Luke, No. 05-0157/NA

DuBay military judge’s findings that are supported by the

evidence, and the relative weakness of Luke’s case,13 we hold

that the newly discovered evidence would probably not have

resulted in a substantially more favorable result for Luke.14


II.   Whether the military judge erred when he found the
      Government was not required to disclose PE 17 relating to
      statistical probabilities discussed on redirect examination

Factual and Procedural Background:

      Following the testimony of the USACIL witnesses at court-

martial, the Government called Dr. Christopher Basten, a

research associate statistician from North Carolina State

University, to testify as to the probability that Luke’s DNA was




13
   Luke’s defense was that TN and RA fabricated the allegations
against him to avoid the consequences of the command discovering
their romantic relationship, which was in violation of ship
policy. This theory, however, is undermined by the fact that TN
and RA voluntarily informed the command of their relationship
when they reported the incident to the command. Luke also
testified that on the date of the alleged events he masturbated
on the bed in the hospital quarters using a lubricant called
Surgilube and then fell asleep sucking his thumb, thereby
accounting for the semen found on the linens and the possibility
that Surgilube might be found on a swab NCIS took from his
mouth.
14
   In his dissent, the Chief Judge argues Mesarosh v. United
States, 352 U.S. 1, 12 (1956), dictates that “[b]ecause ‘the
original finder of fact’ was a court-martial panel, only a new
panel ‘can determine what it would do on a different body of
evidence.’” United States v. Luke, __ M.J. __ (9) (C.A.A.F.
2011) (Effron, C.J. dissenting). We are satisfied that the
procedures traditionally utilized by this court to review cases
presenting newly discovered evidence are appropriate in this
case. See, e.g., Williams, 37 M.J. at 356; United States v.
Johnson, 61 M.J. 195, 198 (C.A.A.F. 2005).

                                22
United States v. Luke, No. 05-0157/NA

contained in the DNA mix found on the bra and the bedsheet

versus that of someone else.   After being qualified as an expert

in statistical genetics, Dr. Basten testified as to the

likelihood of Luke being a contributor to the stain on the sheet

and bra under several different scenarios.   During his testimony

Dr. Basten was assisted by a series of demonstrative exhibits

that set forth the numerical statistical likelihood that Luke

was a contributor under the different assumptions presented to

Dr. Basten.15

     During the cross-examination of Dr. Basten, defense counsel

sought to discredit his explanation of the statistical findings

and raised the possibility that other unknown contributors’ DNA

could also be contained in the stain on the bra:

     Q:   But if you weren’t taking into account the
     profiles of the two people -- let’s say that they were
     unknown -- would that affect the way you do the
     calculations?

     A: That would affect it if we didn’t have any
     information about the other individuals.

          . . . .

     Q:   Now, whenever there’s doubt as to the number of
     contributors to a mixed sample, there can be


15
  Prosecution Exhibits 14, 15, 16, and 18 were handwritten
posters similar to PE 17 in format and all displayed the
statistical likelihood that Luke and TN were contributors to the
stains on the sheet and the bra in various combinations with
Fireman RA and other unknown contributors. The record evidence
of the exhibits includes the notation “PEs 14-18 . . . used as
demonstrative aid only.” None of these demonstrative exhibits
were offered into evidence.

                                23
United States v. Luke, No. 05-0157/NA

     considerable variation in the likelihood ratio; is
     that correct?

     A:   There will be some variance, yes.

     On redirect examination, trial counsel asked Dr. Basten to

address the possibility raised by the defense of at least two

unknown people contributing to the stains and referred him to PE

17, which had not been used in his direct examination:

     Q:   And Doctor, finally, in Prosecution Number 17,
     this is the possibility that the defense just
     addressed, two unknowns in the bra. Can you please
     explain your findings with respect to two other
     unknowns in the bra.

     A:   So another alternate explanation would be that it
     was [TN] and two unknown individuals. And if we
     compare that to the idea that it was Luke, [TN] and
     [RA], it’s -- the evidence is 51 million times more
     likely that it’s the three of them than [TN] and two
     unknowns.

     Shortly thereafter the defense counsel requested an Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2000), session.   During the

Article 39(a), UCMJ, session Luke’s attorney complained to the

military judge that the basis for the statistical analysis in PE

17 had never been provided to the defense during discovery.

Trial counsel responded that Dr. Basten had calculated the

figures used in PE 17 “recently.”   He argued that it was

evidence in rebuttal and they were not required to provide

rebuttal evidence in response to pretrial discovery requests.

The military judge found that it was clearly rebuttal evidence

to which the defense was not entitled during discovery.     Defense



                               24
United States v. Luke, No. 05-0157/NA

counsel then argued that the probative value of the exhibit was

outweighed by its prejudicial effect.   The military judge held

the prejudicial impact was minimal, that there was some

probative value, and declined to strike the exhibit or provide a

limiting instruction.

     Before this court Luke argues that the military judge erred

when he found that the Government was not required to disclose

PE 17 to the defense prior to trial.    He asserts that the

defense never opened the door for the admission of this evidence

during cross-examination and the admission of this evidence was

not harmless because defense counsel was not prepared to

properly cross-examine the witness on this point.

     In response, the Government argues that trial counsel did

not violate discovery obligations because the statistical ratio

at issue in PE 17 had been calculated “recently” and the

evidence was only presented in response to defense counsel’s

assertions about two unknown contributors to the DNA profiles on

the victim’s bra.

     Rule for Courts-Martial 701(a)(2) provides:

     After service of charges, upon request of the defense,
     the Government shall permit the defense to inspect:

     (A) Any books, papers, documents, photographs,
     tangible objects, buildings, or places, or copies of
     portions thereof, which are within the possession,
     custody, or control of military authorities, and which
     are material to the preparation of the defense or are
     intended for use by the trial counsel as evidence in



                               25
United States v. Luke, No. 05-0157/NA

     the prosecution case-in-chief at trial, or were
     obtained from or belong to the accused; and

     (B) Any results or reports of physical or mental
     examinations, and of scientific tests or experiments,
     or copies thereof, which are within the possession,
     custody, or control of military authorities, the
     existence of which is known or by the exercise of due
     diligence may become known to the trial counsel, and
     which are material to the preparation of the defense
     or are intended for use by the trial counsel as
     evidence in the prosecution case-in-chief at trial.

“The military rules pertaining to discovery focus on equal

access to evidence to aid the preparation of the defense and

enhance the orderly administration of military justice.”    United

States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).     “To this

end, the discovery practice is not focused solely upon evidence

known to be admissible at trial. . . . The parties to a court-

martial should evaluate pretrial discovery and disclosure issues

in light of this liberal mandate.”   Id. (citation omitted).

     Defense counsel’s discovery request sought “[a]ny

handwritten, computer-generated, typed, or recorded statements

by any witness for the government” as well as “[a]ny writing or

document, including notes, used by a witness to refresh his/her

memory for the purpose of testifying at trial, either while

testifying or before testifying.”    However, it is impossible for

this court to address whether there was a discovery violation as

the record does not reflect when PE 17 was prepared.   We cannot

know the meaning of trial counsel’s comment that PE 17 had only

been produced “recently.”   The other demonstrative exhibits used


                                26
United States v. Luke, No. 05-0157/NA

by Dr. Basten (PEs 14, 15, 16, and 18) were used during direct

examination and were in the same format as PE 17, which was used

in rebuttal.   In addition, comments made by trial counsel during

the Article 39(a), UCMJ, session indicated that the Government

anticipated that defense counsel would ask the question that he

did during cross-examination, and that the Government was

prepared to rebut it with PE 17.     If it was prepared pretrial,

it should have been provided to the defense in response to their

discovery request pursuant to R.C.M. 701(a)(2) regardless of

when the Government intended to use it.    United States v.

Trimper, 28 M.J. 460, 468 (C.M.A. 1989).     Indeed “[a]n accused’s

right to discovery is not limited to evidence that would be

known to be admissible at trial.     It includes materials that

would assist the defense in formulating a defense strategy.”

Webb, 66 M.J. at 92.   However, if PE 17 was produced mid-trial

in response to the cross-examination of Dr. Basten, then the

Government could not have provided it to the defense pretrial

because it did not exist.

     Although we cannot resolve whether a discovery violation

occurred, “[a]n appellate court may resolve a discovery issue

without determining whether there has been a discovery violation

if the court concludes that the alleged error would not have

been prejudicial.”   United States v. Santos, 59 M.J. 317, 321

(C.A.A.F. 2004).



                                27
United States v. Luke, No. 05-0157/NA

      On direct examination, trial counsel elicited from Dr.

Basten a full explanation of the statistics presenting the

likelihood that biological evidence in the case linked Luke to

the bra.    Direct examination of Dr. Basten revealed information

about his analysis, including which databases and populations he

relied upon to generate the statistics presented.   There was no

objection during the direct examination of Dr. Basten as to the

underlying calculations on the other demonstrative exhibits and

apparently the statistical basis for those exhibits was no

surprise to the defense.   There is no indication that Dr. Basten

relied on a separate database or population for the calculations

in PE 17.   It was simply a piece of demonstrative evidence that

did no more than reiterate the expert’s testimony on direct

examination.   The defense therefore had all of the information

necessary to understand how the calculations in PE 17 and the

other demonstrative exhibits were derived.   Further, given the

multiple statistical formulations presented on direct

examination, we cannot find that one additional calculation of

the odds that the physical evidence was attributable to Luke

tipped the scales against Luke in this case.   Therefore, we find

that the admission of PE 17 was not prejudicial.




                                 28
United States v. Luke, No. 05-0157/NA

III. Whether Luke’s due process rights were violated by untimely
     post-trial proceedings

     The Court of Criminal Appeals reviewed Luke’s claim that he

was denied speedy post-trial processing of his case.   Luke, 2009

CCA LEXIS 270, at *21, 2009 WL 2345124, at *6.   That court found

that any due process violation that may have occurred in Luke’s

case was harmless beyond a reasonable doubt.   Id. at *22, 2009

WL 2345124, at *7.

     Before this court Luke renews his argument that the eleven-

year delay between his conviction and the lower court decision

was unreasonable and is attributable to the Government.    Luke

cites the numerous motions for enlargement of time made by both

his defense attorney and the Government before the lower court

and also faults the Government for the delayed investigation

into Mills’ misconduct.   Luke claims he was prejudiced by the

post-trial delay because the Government destroyed the physical

evidence, making any review of the biological evidence

impossible, and because the United States has denied his

application for citizenship because of his court-martial

conviction.

     The Government cites the lengthy, in-depth investigation

into Mills’ misconduct that was required to properly evaluate

all the cases Mills handled as reason for the post-trial delay.

Given these extraordinary circumstances, the Government argues

that the post-trial delay in Luke’s case was reasonable.


                                29
United States v. Luke, No. 05-0157/NA

Further, the Government asserts that Luke’s arguments that he

suffered prejudice are weak and he has not presented any

concrete evidence as to why his application for citizenship was

denied.

     This court’s methodology for reviewing issues of post-trial

and appellate delay was set out in United States v. Moreno, 63

M.J. 129 (C.A.A.F. 2006).    We first determine whether the delay

is facially unreasonable and, if so, we examine the four factors

set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514,

530 (1972).   United States v. Young, 64 M.J. 404, 408-09

(C.A.A.F. 2007).    The four factors are:   (1) the length of the

delay; (2) the reasons for the delay; (3) the appellant’s

assertion of the right to timely review and appeal; and (4)

prejudice.    Id.   If this analysis leads us to conclude that the

appellant has been denied the due process right to speedy post-

trial review and appeal, we grant relief unless we are convinced

beyond a reasonable doubt that the constitutional error is

harmless.    Id. at 409 (citation omitted).   “Issues of due

process and whether constitutional error is harmless beyond a

reasonable doubt are reviewed de novo.”     Id. (citation omitted).

     With a delay of over eleven years between the completion of

his court-martial and the issuance of the Court of Criminal

Appeals decision, there is no doubt that the length of delay is

facially unreasonable.    However, we need not engage in a



                                  30
United States v. Luke, No. 05-0157/NA

separate analysis of each factor where we can assume error and

proceed directly to the conclusion that any error was harmless

beyond a reasonable doubt.    Id.    Reviewing the totality of

circumstances in this case,16 including the fact that we have

found no merit in either of substantive issues appealed by Luke,

we conclude that any denial of his right to speedy post-trial

review and appeal was harmless beyond a reasonable doubt.17      See

id.; United States v. Bush, 68 M.J. 96, 104 (C.A.A.F. 2009)

(holding denial of right to speedy post-trial review harmless

beyond a reasonable doubt).

                              DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




16
  We acknowledge that the delay in this case was extreme and
take particular note of the second DuBay military judge’s
conclusion regarding the speed of the Government’s review:

     There appeared to be no sense of urgency on the part
     of the USACIL laboratory administration or their chain
     of command to resolve the weighty issues associated
     with the substantial allegations pending against them.
     While I do not consider the investigation of Mr. Mills
     and the subsequent analysis the model of dispatch, it
     does appear to be thorough.

However, the majority of the delay was attributable to the
procedural back and forth among this court, the Court of
Criminal Appeals, and the DuBay proceedings.
17
   We also note that there is no evidence in the record to
support Luke’s contention that his application for citizenship
was denied.

                                    31
United States v. Luke, No. 05-0157/NA


        RYAN, Judge (concurring):

        Appellant successfully petitioned this Court to grant

his supplemental issue pursuant to Article 67, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 867 (2006), United

States v. Luke, __ M.J. __ (2) (C.A.A.F. 2011).

Nonetheless, with respect to the supplemental issue, I view

his claim as a petition for a new trial on the basis of

newly discovered evidence, governed by Article 73, UCMJ, 10

U.S.C. § 873 (2006), and Rule for Courts-Martial (R.C.M.)

1210.    Indeed, Appellant has consistently invoked the

statutory language of Article 73, UCMJ, and R.C.M. 1210,

and the Court’s opinion makes clear that “the framework of

R.C.M. 1210 should govern our analysis.”    Luke, __ M.J. __

(12 n.8).

        I concur in and join the opinion of the Court.    I

write separately because as a matter of first impression I

would have found Appellant’s petition for a new trial based

on newly discovered evidence to be time-barred.    Both

Article 73, UCMJ, and R.C.M. 1210(a) set forth a clear time

limit for petitioning for a new trial:    “2 years after

approval by the convening authority of a court-martial

sentence.”    This is so even if the petitioner did not

discover the evidence until after the two-year time period

has expired.    See, e.g., United States v. Rashid, 375 F.
United States v. Luke,     No. 05-0157/NA


App’x 199, 201 (3d Cir. 2010) (holding that a motion for a

new trial based on newly discovered evidence under Fed. R.

Crim. P. 33 was untimely when made outside the three-year

filing period and based on evidence discovered outside that

three-year filing period).

     But when this Court considered the timeliness of

Appellant’s request, it ordered the CCA to conduct a DuBay

hearing in order to determine whether Appellant was

entitled to a new trial.    United States v. Luke (Luke I),

63 M.J. 60, 63 (C.A.A.F. 2006).     The Government has not

appealed this decision.    Therefore, although I agree with

the reasoning of the dissent in Luke I, see id. at 64

(Erdmann, J., dissenting), and am prepared to revisit the

issue in an appropriate case, I regard the decision in Luke

I as law of the case here.    See United States v. Erickson,

65 M.J. 221, 224 n.1 (C.A.A.F. 2007) (holding that when a

ruling is not appealed, it “will normally be regarded as

law of the case and binding upon the parties”).1


1
  While a jurisdictional error may not be waived, the filing
time limit set forth in Article 73, UCMJ, and R.C.M. 1210
is more akin to a statute of limitations. See John R.
Sands & Gravel Co. v. United States, 552 U.S. 130, 133
(2008) (noting that whereas some time limits are
jurisdictional, “[m]ost statutes of limitations” are not).
Whereas United States v. Rodriguez, 67 M.J. 110 (C.A.A.F.
2009), and Bowles v. Russell, 551 U.S. 205 (2007),
considered statutory language governing when courts are
permitted to take appeals, see Article 67(b), UCMJ; 28

                                2
United States v. Luke,   No. 05-0157/NA




U.S.C. § 2107(a), the language at issue here in Article 73,
UCMJ, and R.C.M. 1210, like the language of Fed. R. Crim.
P. 33, governs when a petitioner has the right to file.
Accord Eberhart v. United States, 546 U.S. 12, 19 (2005)
(“[I]t is difficult to escape the conclusion that [time
limits for Fed. R. Crim. P.] 33 motions are . . .
nonjurisdictional” (citing Kontrick v. Ryan, 540 U.S. 443
(2004))).

                              3
United States v. Luke, No. 05-0157/NA


     STUCKY, Judge (concurring in part and dissenting in part):

     Because I believe that under recent precedents we have no

jurisdiction to entertain Appellant’s request for a new trial, I

would vacate the grant of review on Issue I and dismiss the

petition with respect to that issue.    I concur in the majority’s

disposition of Issues II and III.

                                  I.

     The convening authority acted on Appellant’s case on March

29, 2000.   More than five years later, on August 31, 2005, after

this Court had already granted review of two issues, Appellant

submitted a motion to file a supplemental issue -- asking for a

new trial -- directly to this Court.    We granted review of the

supplemental issue and remanded for an evidentiary hearing into

whether the evidence supporting his conviction had been

compromised or falsified.    See United States v. Luke (Luke I),

63 M.J. 60, 63 (C.A.A.F. 2006).

     The Government, relying on our decision in United States v.

Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), now argues in its brief

that we do not have jurisdiction to consider whether to grant a

new trial in this case.1    While Appellant insists that our


1
  In light of our opinion in Rodriguez, the Government raised the
jurisdictional issue before the United States Navy-Marine Corps
Court of Criminal Appeals (CCA), but the CCA correctly noted
that it was “constrained to exercise jurisdiction to consider
the appellant’s petition by the remand of our superior court.”
United States v. Luke, No. NMCCA 200000481, 2009 CCA LEXIS 270,
United States v. Luke, No. 05-0157/NA


assertion of jurisdiction in Luke I is controlling, and points

to the 2009 opinion of the court below as support for the

proposition, neither is convincing.   See United States v. Luke,

No. NMCCA 200000481, 2009 CCA LEXIS 270, 2009 WL 2345124 (N-M.

Ct. Crim. App. July 31, 2009).   The decision of a lower court

cannot, of course, control our independent assessment of our own

jurisdiction, an assessment we are required to make.   Mansfield,

Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 382

(1884).

     In Rodriguez, decided after Luke I, a majority of this

Court held that the petition-filing deadline in Article 67(b),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(b)

(2006), “is jurisdictional and mandatory” in light of the

Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205

(2007).   67 M.J. at 116.   Bowles held generally that statutory

time limits on filings were jurisdictional:

     Because Congress decides whether federal courts can
     hear cases at all, it can also determine when, and
     under what conditions, federal courts can hear them.
     Put another way, the notion of “subject-matter”
     jurisdiction obviously extends to “classes of
     cases . . . falling within a court’s adjudicatory
     authority,” but it is no less “jurisdictional” when
     Congress prohibits federal courts from adjudicating an
     otherwise legitimate “class of cases” after a certain
     period has elapsed from final judgment.




at *11, 2009 WL 2345124, at *4 (N-M. Ct. Crim. App. July 31,
2009) (unpublished).

                                  2
United States v. Luke, No. 05-0157/NA


551 U.S. at 212-13 (ellipsis in original) (citations and quote

marks omitted).

     “Federal courts, including courts in the military justice

system established under Article I of the Constitution, are

courts of limited jurisdiction.”       United States v. Wuterich, 67

M.J. 63, 70 (C.A.A.F. 2008).   “Without jurisdiction the court

cannot proceed at all in any cause.      Jurisdiction is power to

declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and

dismissing the cause.”   Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868), quoted in Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998).

     The exercise of jurisdiction at one stage of a case does

not guarantee its continuance.   Nor does it mean that we, as a

court of limited and purely statutory jurisdiction, may ignore

intervening events that affect that jurisdiction, whether

federal statutes or Supreme Court decisions.      See McCardle, 74

U.S. (7 Wall.) at 514 (holding that Congress may, by statute,

divest the Supreme Court of appellate jurisdiction in a case

already before it).

                                 II.

     Article 73, UCMJ, 10 U.S.C. § 873 (2006), provides:

     At any time within two years after approval by the
     convening authority of a court-martial sentence, the
     accused may petition the Judge Advocate General for a


                                   3
United States v. Luke, No. 05-0157/NA


       new trial on the grounds of newly discovered evidence
       or fraud on the court. If the accused’s case is
       pending before a Court of Criminal Appeals or before
       the Court of Appeals for the Armed Forces, the Judge
       Advocate General shall refer the petition to the
       appropriate court for action. Otherwise the Judge
       Advocate General shall act upon the petition.

       This statute contains precisely the same sort of limit on a

particular filing as the Title 28 statutory provisions examined

in Bowles and Article 67(b) as construed in Rodriguez.    Although

the two-year time limit in Article 73 is not expressed in a

statute from which this Court’s jurisdiction is derived --

Article 67 -- “[t]he accepted fact is that some time limits are

jurisdictional even though expressed in a separate statutory

section from jurisdictional grants.”    Barnhart v. Peabody Coal

Co., 537 U.S. 149, 159 n.6 (2003), quoted in Bowles, 551 U.S. at

210.   Article 73 is such a statute.

       Under the logic of Rodriguez, I believe that we cannot

exercise jurisdiction over the request for a new trial, which

was made long after the expiration of the two-year period

prescribed in Article 73.   Accordingly, I would vacate the grant

of review on Issue I and dismiss it for lack of jurisdiction.

                                III.

       The majority insists that it is not reviewing a petition

for new trial under Article 73, but merely a “supplemental

issue” raised by Appellant “to determine whether the results of

Luke’s court-martial were reliable in light of newly discovered


                                  4
United States v. Luke, No. 05-0157/NA


evidence.”    United States v. Luke, __ M.J. __ (11 n.8) (C.A.A.F.

2011).    But as the author of today’s majority opinion noted in

his dissent in Luke I, considering the supplemental issue

outside the statutory scheme set forth in Article 73 represents

“a broad extension of the right to a new trial based on newly

discovered evidence” that is not supported by our jurisprudence.

See 63 M.J. at 64 (Erdmann, J., dissenting).

        “Petitions for new trials are disfavored in the

law . . . .”    United States v. Harris, 61 M.J. 391, 394

(C.A.A.F. 2005).    Congress established strict ground rules

concerning petitions for new trial; they must be filed with the

Judge Advocate General within two years of the convening

authority’s approval of the sentence, and only on the grounds of

newly discovered evidence or fraud on the court.    Article 73,

UCMJ.    Such petitions are only referred to a military appellate

court if the case is pending at the court when the petition is

filed with the Judge Advocate General.    Had Appellant filed a

petition with the Judge Advocate General, it would have been

denied as untimely and would not have been referred to this

Court.

        To escape the inevitable denial of his petition for new

trial as being untimely filed, Appellant successfully

circumvented the procedures established by Congress for

petitions for new trials by calling this a supplemental issue.


                                   5
United States v. Luke, No. 05-0157/NA


The majority opinion tries to distinguish between the two but

then resolves the issue by employing the framework of Rule for

Court-Martial (R.C.M.) 1210(f)(2), which “sets forth the grounds

for granting a new trial based on newly discovered evidence.”

Luke, __ M.J. at __ (11-12).   But calling it a supplemental

issue, rather than a petition for new trial, doesn’t make it so.

If it looks like a petition for new trial and the Court employs

the President’s framework for reviewing petitions for new trial,

it probably is a petition for new trial.

     By judicial fiat, we have enlarged our jurisdiction to

permit any accused to file a petition for new trial directly to

this Court while the case is on direct appeal.   If Congress had

meant that result, it would have said so in Article 67 or

Article 73.

     In her concurring opinion, Judge Ryan states that “the

filing time limit set forth in Article 73 and R.C.M. 1210 is

more akin to a statute of limitations” than a jurisdictional

filing deadline, and governs when a petitioner has a right to

file rather than when courts are permitted to take appeals.

United States v. Luke, __ M.J. __ (2 n.1) (Ryan, J., concurring)

(citing Eberhart v. United States, 546 U.S. 12, 19 (2005);

Kontrick v. Ryan, 540 U.S. 443 (2004)).    I disagree.   Unlike the

claims-processing rules in Eberhart (Fed. R. Crim. P. 33) and

Kontrick (Fed. R. Bank. P. 4004, 9006), Article 73 is a


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United States v. Luke, No. 05-0157/NA


statutory limitation much like those in Bowles and Rodriguez,

which were determined to be jurisdictional.




                                7
United States v. Luke, No. 05-0157/NA


     EFFRON, Chief Judge (dissenting):

     Post-trial information concerning an expert forensic

witness for the prosecution at Appellant’s court-martial

revealed that the expert had been suspended from his Government

position as a forensic examiner.   This suspension, which

ultimately led to the expert’s resignation, resulted from a

Government investigation conducted several years after

Appellant’s trial that demonstrated misconduct and deficiencies

in the performance of his forensic duties sufficient to warrant

disciplinary action.   The case before us addresses the impact of

the post-trial information on the validity of Appellant’s

conviction.

1.   Background

     The Navy charged Appellant, a hospital corpsman, with

indecent assault of a patient, Seaman Recruit TN.   The parties

agreed at trial as to the underlying circumstances leading up to

the charged offense.   In the course of his duties, Appellant had

examined Fireman A, who was involved in a sexual relationship

with Seaman Recruit TN, to address the possibility that Fireman

A was afflicted with a sexually transmitted disease.   The sexual

relationship between Seaman Recruit TN and Fireman A violated a

shipboard order prohibiting dating among shipmates.    Following

the examination of Fireman A, Seaman Recruit TN visited the

medical facility as well.
United States v. Luke, No. 05-0157/NA


2.   The testimony of the complainant and Appellant

     The parties at trial offered substantially different

versions as to what happened next.   Seaman Recruit TN testified

that Appellant examined her to determine whether she had a

sexually transmitted disease, and sexually assaulted her during

the course of the examination.   Appellant, who denied the

allegation, testified that Seaman Recruit TN visited the medical

spaces after his examination of Fireman A.   He stated that she

was upset and agitated, and soon left the area.   He also stated

that he did not conduct a medical examination of Seaman Recruit

TN and did not otherwise touch her in an inappropriate manner.

3.   The opposing theories of the case

     At trial, the two parties presented diametrically opposed

theories of the case.   According to the prosecution, Appellant

took advantage of Seaman Recruit TN’s vulnerability and

manipulated the circumstances to transform a medical examination

into an opportunity for sexual gratification.   According to the

defense, Seaman Recruit TN and her boyfriend, Fireman A, feared

that Appellant would disclose their prohibited relationship, and

concocted the charges to divert attention from their own

misconduct.

4.   Expert testimony

     The case did not involve any third party eyewitnesses to

the charged misconduct.   Each party presented circumstantial


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United States v. Luke, No. 05-0157/NA


evidence supporting that party’s theory of the case, as well as

circumstantial evidence countering the theory of the opposing

party.

     The prosecution offered expert testimony from two

Government employees on the results of DNA testing of both

bedding from the medical compartment and undergarments

identified by Seaman Recruit TN as those worn by her at the time

of the charged incident.   Phillip Mills, a forensic chemist at

the United States Army Criminal Investigative Laboratory

(USACIL), testified about his serology examination of the

bedding and articles of clothing.    His testimony described his

handling of the physical evidence, the nature of the tests he

performed, and his identification of stains indicating the

presence of bodily fluids.

     Mills testified that he transmitted the stains to another

USACIL employee, Marilyn Chase, for DNA analysis.    Chase

testified about her DNA examination, and expressed her

conclusion that the testing indicated that the stains

transmitted by Mills showed the presence of DNA consistent with

that of Appellant’s DNA.

5.   The court-martial findings and initial review

     The court-martial found Appellant guilty of the charged

indecent assaults.   On February 22, 1999, the court-martial




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United States v. Luke, No. 05-0157/NA


adjudged a sentence that included confinement for two years and

a bad-conduct discharge.

     The case was docketed at the Navy-Marine Corps Court of

Criminal Appeals on May 8, 2000.       The Court of Criminal Appeals

completed its review on September 28, 2004, at which time it

affirmed the findings and sentence.

6.   Forensic misconduct

     Appellant subsequently filed an appeal with our Court.

While that appeal was pending, USACIL issued a memorandum on

August 25, 2005, alerting all staff judge advocates that a

USACIL DNA examiner had been suspended “after permitting

contamination in his testing process.”

     In a subsequent memorandum, issued on October 17, 2005,

USACIL identified the examiner as Phillip Mills, and listed a

number of problems with his work, including incidents in which

he “cross-contaminated and/or switched samples,” “altered

documentary evidence,” “entered false data regarding a control

sample,” “admitted to making a false data entry and creating a

false document,” and “misrepresented he examined evidence when

he had not.”   The reliability of the trial results in

Appellant’s court-martial, in light of the information about

Mills, has been addressed in subsequent factfinding and

appellate proceedings.   See United States v. Luke, 63 M.J. 60,

63 (C.A.A.F. 2006); United States v. Luke, 65 M.J. 5 (C.A.A.F.


                                   4
United States v. Luke, No. 05-0157/NA


2007); United States v. Luke, No. NMCCA 200000481, 2009 CCA

LEXIS 270, 2009 WL 2345124 (N-M. Ct. Crim. App. July 31, 2009)

(unpublished).

     Following discovery of the deficiencies in the testing

process due to Mills’s misconduct, USACIL asked law enforcement

agencies to return the physical evidence in the cases he had

handled so that USACIL could conduct new testing.   The Naval

Criminal Investigative Service reported that it had destroyed

the evidence in Appellant’s case prior to receiving the request

from USACIL.   As a result, the physical evidence relied upon by

the court-martial to convict Appellant was not available for

retesting during the subsequent factfinding proceedings.

     The evidence received in the factfinding proceedings

confirmed information about Mills’s misconduct as a forensic

examiner.   The evidence confirmed that Mills, among other

things, allowed “samples to contaminate one another,” “did not

follow proper testing procedures,” on at least one occasion

“attempted to cover up his mistake by making a false data

entry,” and “had significant problems with the DNA analysis

process, which calls into question the forensic reliability of

the results of his DNA casework.”    The evidence also

demonstrated that contamination of the physical evidence could

occur during the serology portion of the testing, thereby

undermining the validity of the subsequent DNA testing.


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United States v. Luke, No. 05-0157/NA


     The factfinding hearings identified the period of Mills’s

most serious misconduct as taking place while he was a DNA

examiner, a period that occurred several years after his work in

Appellant’s case as a serology examiner.   In that light, and in

view of the testimony about the physical evidence, testing

process, and lack of motive for falsification, the military

judge conducting the factfinding hearing concluded that there

had been no contamination or false testimony with respect to

Appellant’s DNA.   The military judge noted, however, that the

physical evidence had been destroyed, and that contamination can

occur during the serology portion of the testing process.

7.   Discussion

     The majority affirms the findings of the court-martial,

relying on the standard set forth in United States v. Brooks, 49

M.J. 64, 69 (C.A.A.F. 1998) (requiring an evaluation of “whether

the newly discovered evidence, if considered by a court-martial

in light of all other pertinent evidence, would probably produce

a substantially more favorable result for the accused”)

(citation and quotation marks omitted).    If Brooks provided the

sole governing principle, I would agree with the majority.    In

the present case, however, we must also take into consideration

Mesarosh v. United States, 352 U.S. 1 (1956), which applies when

post-trial information so discredits the credibility of a




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United States v. Luke, No. 05-0157/NA


principal government witness that it undermines the integrity of

the judicial process.

     The Supreme Court distinguished the circumstances in

Mesarosh from the normal treatment of a new trial request

involving newly discovered evidence.    Id. at 9.    In Mesarosh,

the government identified information that impugned the

credibility of a witness in unrelated proceedings.     The Supreme

Court concluded that in such a case the credibility of important

government witnesses implicates the “integrity of . . . criminal

trial[s] in the federal courts,” and held that the “dignity of

the United States Government will not permit the conviction of

any person on tainted testimony.”     Id. at 3, 9.

     During the proceedings before the Supreme Court in

Mesarosh, the government had suggested that the case should be

returned to the district court to assess whether the newly

discovered evidence in fact warranted a new trial.     Id. at 8-9.

The Supreme Court rejected that approach, and instead set aside

the conviction.   Id. at 9, 14.   The Court concluded that because

“the original finder of fact was a jury,” only a “jury can

determine what it would do on a different body of evidence.”

Id. at 12.   The principles promulgated by the Court in Mesarosh

have since been utilized in similar situations by other federal

courts.   See, e.g., Williams v. United States, 500 F.2d 105 (9th




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United States v. Luke, No. 05-0157/NA


Cir. 1974); United States v. Polisi, 416 F.2d 573 (2d Cir.

1969).

     In the case before us, Mills -- a Government employee --

was interjected into the case by the Government to participate

in its investigation.   He played a vital role in the examination

of Appellant’s forensic evidence.      Mills was the first USACIL

examiner to come into contact with the evidence at issue, and he

repeatedly interacted with the evidence during the course of his

serological examination.   Specifically, Mills removed the

evidence for examination, visually inspected it for stains, cut

out the areas of suspected stain with scissors, placed these

materials in sterile test tubes for storage, and forwarded these

tubes to Chase for DNA analysis.

     The Government’s investigation established Mills’s history

of cross-contamination, violation of laboratory protocols,

“incomplete and incompetent” analysis as a DNA examiner, and

“thoroughness issues” as a serology examiner, all of which

underscore the potential for contamination of Appellant’s

evidence in the present case.   The Government subsequently

destroyed the physical evidence at issue, thereby precluding the

type of retesting that might have restored some level of

confidence in the process.   In this context, the evidence of

Mills’s misconduct undermines the integrity of Appellant’s

verdict.   Because “the original finder of fact” was a court-


                                   8
United States v. Luke, No. 05-0157/NA


martial panel, only a new panel “can determine what it would do

on a different body of evidence.”   Mesarosh, 352 U.S. at 12.

Accordingly, I respectfully dissent from the majority’s decision

to affirm the findings and sentence.




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