        This opinion is subject to revision before publication


          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
                 Nicholas S. BAAS, Corporal
             United States Marine Corps, Appellant
                           No. 19-0377
                     Crim. App. No. 201700318
          Argued March 17, 2020—Decided May 29, 2020
       Military Judges: Forrest W. Hoover and Peter S. Rubin
   For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN
   (argued).
   For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN
   (argued); Lieutenant Colonel Nicholas L. Gannon, USMC,
   Lieutenant Commander Timothy C. Ceder, JAGC, USN, and
   Brian K. Keller, Esq. (on brief); Colonel Mark K. Jamison,
   USMC.
   Judge RYAN delivered the opinion of the Court, in which
   Chief Judge STUCKY and Judges OHLSON, SPARKS,
   and MAGGS (except as to Part II.B), joined. Judge
   MAGGS filed a separate opinion, concurring in part and
   concurring in the judgment.
                      _______________

   Judge RYAN delivered the opinion of the Court.
    A general court-martial convicted Appellant, contrary to
his pleas, of two specifications of conspiracy,1 one specifica-
tion of false official statement, two specifications of raping a
child, two specifications of producing child pornography with
intent to distribute, and two specifications of distribution of
child pornography in violation of Articles 81, 107, 120b, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 881, 907, 920b, 934 (2012). In accordance with his pleas, he

   1 Following findings, the military judge consolidated the two
conspiracy specifications into one. United States v. Baas, No.
NMCCA 201700318, 2019 CCA LEXIS 173, at *1 n.1, 2019 WL
1601912, at *1 n.1 (N-M. Ct. Crim. App. Apr. 15, 2019) (un-
published).
              United States v. Baas, No. 19-0377/MC
                      Opinion of the Court

was acquitted of one specification of raping a child, one spec-
ification of producing child pornography, and one specifica-
tion of distributing child pornography. Appellant was sen-
tenced to forfeiture of all pay and allowances, reduction to
grade E-1, confinement for fifteen years, and a dishonorable
discharge. The convening authority approved the sentence as
adjudged and the United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA) affirmed the findings and sen-
tence. Baas, 2019 CCA LEXIS 173, at *55, 2019 WL 1601912,
at *19.
   We granted review of two issues:
       I. Did admission of an allegedly positive Diatherix
       Laboratories test for gonorrhea, without testimony
       at trial of any witness from Diatherix,2 violate the
       Sixth Amendment Confrontation Clause?
       II. Did the lower court abuse its discretion in admit-
       ting an alleged positive Diatherix test result for gon-
       orrhea in a child’s rectal swab—where Diatherix
       failed to follow its own procedures and the result was
       of near zero probative value?
The first question we answer in the negative. As to the second
question, even assuming error, we find no prejudice. We
therefore affirm the lower court.
                          I. Background
   The charges arose out of Appellant’s abuse of his son, GB.
In June 2016, Appellant’s girlfriend, KM, searched through
his cellphone for evidence of infidelity and discovered mes-
sages in the Skype application between him and “Hailey
Burtnett”3 from August 2015 to June 2016. In these mes-
sages—exchanged simultaneously but with a one-way video

   2  Although the executive vice president of Diatherix was a wit-
ness at an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session,
neither he nor any Diatherix employee who administered the test
at issue testified at trial.
   3 Hailey Burtnett was never located or identified. While Appel-
lant claimed to have known her from his high school in Alabama,
he never saw her since the Skype feed was one-way, and law en-
forcement was unable to find any record of such a person at the
school or in that town. “Hailey’s” internet protocol (IP) address did
not originate from Florida—where she told Appellant she lived—



                                 2
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

in which Hailey could view Appellant though he could not
view her—Hailey directed Appellant to perform sexual acts
on his infant son. The messages indicated that Appellant com-
plied.
    KM gave Appellant’s phone to his chain of command, who
then alerted the Naval Criminal Investigative Service
(NCIS). NCIS apprehended and interrogated Appellant. Dur-
ing his NCIS interview, Appellant admitted performing the
acts Hailey directed him to do but insisted that the object of
those acts was a green teddy bear belonging to his son, and
not GB himself. When the NCIS agents expressed disbelief at
this defense given the obscene specifics and the inability to
commit the acts described with a teddy bear, Appellant ex-
plained that all the graphic descriptions and directions were
the stuff of imagination. Then, attempting to demonstrate his
innocence, Appellant admitted that he had chlamydia and
gonorrhea, and insisted that should NCIS test GB for the in-
fections, the tests would come back negative.
    The day after Appellant’s NCIS interview, GB’s mother,
who had separated from Appellant in 2015, took the child to
Coastal Children’s Clinic for an appointment with Dr. Lisa
Kafer, who performed a physical examination on GB. Finding
no visible signs of abuse, Dr. Kafer obtained a rectal swab of
GB and ordered a test from Diatherix—a diagnostic service—
to check for chlamydia and gonorrhea. Diatherix ran a nucleic
acid amplification test (NAAT), which came back positive for
gonorrhea. Dr. Kafer then referred GB to another medical
center for a confirmatory culture test and treatment. That fa-
cility ran the wrong test, contaminated the sample by refrig-
erating it, and treated GB with an antibiotic, which foreclosed
the possibility of further confirmatory testing.
   Before trial, defense counsel moved to exclude the Dia-
therix test result under both the Confrontation Clause and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
The military judge admitted the test result, finding no Con-


but resolved back to Spain, France, Iceland, and Germany. Though
we do not know who Appellant skyped with, or if it was even a
woman, for purposes of the opinion we will use the name and sex of
the person Appellant believed he was communicating with.



                                3
               United States v. Baas, No. 19-0377/MC
                       Opinion of the Court

frontation Clause violation because the result was not testi-
monial: It was “not made with an eye toward litigation” but
was part of GB’s medical treatment.
    As to the Daubert challenge, both parties submitted volu-
minous documentary evidence, and the military judge heard
expert testimony from each party in a lengthy Article 39(a),
UCMJ, hearing. The defense called Dr. Hammerschlag, a pe-
diatrician and certified expert in the field of sexually trans-
mitted infection (STI) diagnostics, who testified that the par-
ticular NAAT Diatherix used had not been reviewed by the
Food and Drug Administration (FDA), and the Centers for
Disease Control and Prevention (CDC) does not recommend
the use of NAATs generally on prepubescent boys because the
low prevalence of gonorrhea in that population creates a high
probability of false positives. This probability, the expert
claimed, made it unlikely that GB’s test result was a true pos-
itive.
    The Government proffered two experts: Drs. Stalons and
Hobbs. Dr. Stalons, Diatherix’s executive vice president and
clinical director, explained the company is accredited by the
American College of Pathologists (CAP) and certified for test-
ing bacteria like gonorrhea. He added that portions of the
NAAT Diatherix uses are proprietary, which meant that the
test had not been reviewed by the FDA. Nevertheless, the test
has a 99% accuracy rate when testing blind samples as part
of its accreditation and a 100% accuracy rate for the particu-
lar gonorrhea tested in this case. Dr. Hobbs, an expert in mi-
crobiology, agreed with the defense expert that the low prev-
alence of gonorrhea among boys increased the likelihood of
false positives, but disagreed with her on what the likelihood
of a false positive was. Dr. Hobbs also testified that a culture
is typically preferred to an NAAT in cases of suspected child
abuse. She nevertheless determined that because Diatherix’s
NAAT is highly accurate, precise, sensitive, and specific,4 the
test produces valid results.


    4A test is accurate if it can produce “a true indication of the
nature and quantity of the substance or object being measured.”
S. W. Martin, The Evaluation of Tests, 41 Can. J. Comp. Med. 19,
23 (1977). A test is precise if it is able “to give consistent results in



                                   4
               United States v. Baas, No. 19-0377/MC
                       Opinion of the Court

    Based on the expert testimony and the parties’ submis-
sions, the military judge issued a written ruling applying the
Daubert factors to conclude that the test was “a reliable test
based upon scientific principles.” The military judge found
that the defense expert’s concern that the test had a low pos-
itive predictive value when used for samples from prepubes-
cent boys did not “undermine the scientific principles upon
which the test is based.”5 He cited United States v. Sanchez,
65 M.J. 145, 151 (C.A.A.F. 2007), for the proposition that “ex-
istence of an error rate or disagreement over what that rate
may be does not render the test inadmissible,” and denied de-
fense counsel’s motion to exclude the test result.
   At trial, the Government introduced Appellant’s state-
ments to NCIS, the testimony of several expert and lay wit-
nesses, both Appellant’s and GB’s positive test results for gon-
orrhea, and Appellant’s Skype conversations with Hailey.
    The conversations reveal a course of conduct that involved
Hailey orchestrating and directing sexual conduct for Appel-
lant to perform upon himself, see, e.g., Joint Appendix at 911–
15, United States v. Baas, No. 19-0377 (C.A.A.F. Dec. 27,
2020) (penetrating his own anus with a cucumber and a bottle
of lubricant on August 22, 2015), and giving Appellant more
insidious instructions to perform sexual acts on his son. While
Appellant was sometimes hesitant to carry out Hailey’s in-
structions, he participated in her “game.”



repeated determinations in the same sample or [subject].” Id. A
test’s sensitivity refers to its ability “to correctly identify those pa-
tients with the disease,” whereas its specificity refers to its ability
“to correctly identify those patients without the disease.” Abdul
Ghaaliq Lalkhen & Anthony McCluskey, Clinical Tests: Sensitivity
and Specificity, 8 Continuing Educ. in Anaesthesia, Critical Care &
Pain 221, 221 (2008) (emphasis added). Diatherix’s test accuracy
was 94.6%, its precision 99.7%, its sensitivity comparable to other
NAATs, and its specificity perfect.
    5  Positive predictive value (PPV) refers to the likelihood that
the specific test result at issue is a true positive. See Lalkhen &
McCluskey, supra note 4, at 221 (“The PPV of a test is a proportion
that is useful to clinicians since it answers the question: ‘How likely
is it that this patient has the disease given that the test result is
positive?’ ”).



                                   5
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

   For example, in a conversation on March 29, 2016, accom-
panied by a one-way live-streamed video call, Hailey directed
Appellant to sodomize GB:
      [Hailey:] lick his balls
                his little balls
                put him all in your mouth
                balls and dick
                ....
                lick his butt a little
                yes
                yes
                lay on you[r] back lay hi[m] on u
                so u can lick his ass
                and suck his dick a little
                yes
                ....
                use yo[ur] finge[r a lit]tle
                does he like that
                show me
                closer
                ....
                [put] lotion on yo[ur] dick
                rub h[i]s dick too
                with the l[o]tion
                yes
                on his ass a little
                he li[k]es it
                ....
                slide your finge[r in] a [lit]tle
                ....
                use the tip of yo[ur] dick a little
                just a little
                u got him hard
                ....


                                   6
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

       [App.:]   Oh my god lol
                 ....
                 i kinda came
       [Hailey:] I know
                 But not al[l the] way
The conduct continued for nearly ten more minutes, with Hai-
ley directing Appellant to put lotion on his son and rub him-
self in various ways against his son, and “go in him a little.”
These messages and the accompanying video stream lasted
over forty-five minutes, including a brief interruption where
the call ended and was restarted.
   Appellant and Hailey engaged in another conversation
spanning from late the night of May 2, 2016, to the early
hours of May 3, 2016:
       [May 2, 2016]
       [Hailey:] u in a dirty mood tonight
                 after u eat
       [App.:]   Lol ain’t I always?
       [Hailey:] yes
       [App.:]   Tell me what you’re thinking
       [Hailey:] a little of [GB] then u cumming so good
       [App.:]   Tell me all about it babe
                 ....
       [May 3, 2016; approximately three hours later]
       [Hailey:] do u have the lotion
       [App.:]   Yeah
       [Hailey:] get in your shorts
                 ....
                 take off the diaper
                 kiss down him
                 down his chest
                 more
                 he loves it
                 his dick a little




                                     7
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

                 ....
                 show all of him
                 get him very hard
                 show how hard he is
                 just the tip of it
After eleven minutes, the call was interrupted when Appel-
lant’s fellow marine came to his apartment and Appellant had
to put GB to bed. Hailey repeatedly asked Appellant to wake
GB, but Appellant declined:
       [Hailey:] take [GB] with u
                 to your room
                 ok
       [App.:]   [GB] is asleep now
       [Hailey:] I know put him in yo[ur] room
                 ....
                 check on him then move him
       [App.:]   He is asleep but if I pick him up
                 he will wake up
       [Hailey:] move him slowly
                 try to ok
       [App.:]   No woman I’m not moving my sleeping
                 child.
On May 8, 2016, Hailey texted Appellant to remind him that
they “never did get to finish up from the other night.” Appel-
lant replied that they would have to proceed without GB be-
cause he was sleeping. Once again Hailey requested that Ap-
pellant wake GB, but Appellant declined. The two exchanged
similar texts the following day, with Hailey explaining she
had just wanted Appellant to put his “mouth on him a little
but don’t wake him up,” and Appellant responding that GB
“sleeps on his belly and if I try to roll him over he will wake.”
    But on May 15, 2016, GB was awake when Hailey texted
Appellant. The two then began a one-way video call that
lasted around thirty minutes, with a brief interruption when
the call stopped and was restarted. During this call, Hailey
again directed Appellant to sexually abuse his son. For exam-
ple:


                                      8
            United States v. Baas, No. 19-0377/MC
                    Opinion of the Court

      [Hailey:] try to get [your penis] in his mouth some
                tel[l] him to open his mouth up wider
                say open it big
                put him on your chest
                so you can suck him a little
                ....
                rub his dick
                then use your finger in his ass very tlly
                slowly
                suck him w[h]ile u do it
                go slowly
                not to[o] much
                use yo[ur] mouth on him
                ....
                put lotion on yo[ur ]dick
                yes
                [p]ut his ass on yo[ur] dick
                yes
                go back and forth
                yes
                like t[ha]t
                ....
                hold him on u
      [App.:]   Have to hurry
      [Hailey:] tight
                ....
      [App.:]   Have to go
The conversation and video stream then ended abruptly.
Judging from the chat history, this was the last time Appel-
lant sexually abused GB at Hailey’s direction.
   On June 6, Appellant stated that he would no longer carry
out Hailey’s instructions on GB:
      [Hailey:] do u want to cum . . . today




                                  9
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

                 ....
                 and then with [GB] 2mrow
       [App.:]   No [GB] for a few weeks
       [Hailey:] come on
                 just one more time
       [App.:]   No when I say something it’s for a reason
    Appellant’s defense focused on two points: (1) that the Di-
atherix test was grossly unreliable and therefore GB’s test re-
sult was a false positive, and (2) that even if Appellant carried
out the acts described in these chats, he did so not to GB, but
to GB’s green teddy bear.
    At closing, the parties focused mainly on the second point.
The defense offered varying theories, each of which trial coun-
sel disputed, to demonstrate that Appellant had not abused
GB: the conversations were simply sexual fantasies, the acts
were performed not on GB but on a teddy bear, the whole
thing was a set up perpetrated by Hailey. Defense counsel
also dedicated a large share of his closing to the Diatherix test
result, emphasizing its unreliable nature. Trial counsel as-
serted that the test was reliable and that the positive result
“corroborates the overwhelming digital forensic evidence that
the government has presented in this case.” But he clarified
that GB’s test result was neither dispositive of the gonorrhea
diagnosis, nor necessary to establish Appellant’s guilt on the
rape charges: “This test is nothing more than a screening test.
It’s some evidence—some additional evidence for you to con-
sider. And the case does not rise or fall on gonorrhea.”
    The members found Appellant guilty on the charges re-
lated to the conduct on March 29, 2016, and May 15, 2016,
but found him not guilty of the specifications related to the
conduct on May 2, 2016.
   The NMCCA affirmed the lower court, ruling that the Di-
atherix lab report was not testimonial and that Appellant
therefore was not denied his Sixth Amendment right to con-
frontation. Baas, 2019 CCA LEXIS 173, at *34, 2019 WL
1601912, at *10–11. The NMCCA also determined that the
military judge correctly applied the Daubert factors in decid-
ing whether to admit the Diatherix test and the related expert



                                10
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

testimony. 2019 CCA LEXIS 173, at *19, 2019 WL 1601912,
at *5–7.
                         II. Discussion
                 A. The Confrontation Clause
   Appellant argues that the Diatherix test result was testi-
monial because (1) Dr. Kafer, the requesting physician, acted
on behalf of law enforcement to obtain the test since social
services—a part of law enforcement—had referred GB’s
mother to her for testing; and (2) Diatherix must have known
the testing of a rectal swab from a one-year-old for gonorrhea
was part of a criminal investigation and was therefore in-
tended for use at trial. We disagree.
    “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This clause permits the admission of
“testimonial statements of a witness absent from trial . . .
only where the declarant is unavailable, and . . . the defend-
ant has had a prior opportunity to cross-examine.” Crawford
v. Washington, 541 U.S. 36, 59 (2004); see United States v.
Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011). This Court re-
views de novo whether statements are testimonial for pur-
poses of the Sixth Amendment. United States v. Squire, 72
M.J. 285, 288 (C.A.A.F. 2013).
    In determining whether a statement is testimonial, this
Court asks “whether it would ‘be reasonably foreseeable to an
objective person that the purpose of any individual state-
ment . . . is evidentiary,’ considering the formality of the
statement as well as the knowledge of the declarant.” United
States v. Katso, 74 M.J. 273, 279 (C.A.A.F. 2015) (quoting
United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013)) (col-
lecting cases). “In the end, the question is whether, in light of
all the circumstances, viewed objectively, the ‘primary pur-
pose’ of the [statement] was to ‘creat[e] an out-of-court substi-
tute for trial testimony.’ ” Ohio v. Clark, 135 S. Ct. 2173, 2180
(2015) (second alteration in original) (quoting Michigan v.
Bryant, 562 U.S. 344, 358 (2011)). The “statement” at issue is
the lab report from Diatherix, and the declarant therefore is
Diatherix and its employees who conducted the test. Thus,
our focus in this inquiry here is on the purpose of the state-



                               11
              United States v. Baas, No. 19-0377/MC
                      Opinion of the Court

ment in the Diatherix test result, and not on the purpose oth-
ers—such as the treating physician—may have had in facili-
tating that statement.6 See Sweeney, 70 M.J. at 302 (“[T]he
focus has to be on the purpose of the statements in the drug
testing report itself, rather than the initial purpose for the
urine being collected and sent to the laboratory for testing.”).
   Here, the totality of the circumstances shows that the pri-
mary purpose of the test was diagnostic and not evidentiary.
Although it is true that law enforcement’s involvement in the
process could change the analysis, see United States v. Ran-
kin, 64 M.J. 348, 352 (C.A.A.F. 2007), there was no such in-
volvement here. While Appellant seeks to cast Dr. Kafer as
an agent of law enforcement, the evidence is to the contrary.
Dr. Kafer assessed GB for child sexual abuse, but the sample
was submitted to Diatherix to assess whether he had con-
tracted a sexually transmitted infection in order to treat it.
Tellingly, when Dr. Kafer received the lab results back from
Diatherix on June 18, she arranged for a confirmatory test
and treatment.
    Although NCIS received the test results shortly after the
test was run, SA Morgan testified at trial that NCIS had no
interaction with Dr. Kafer at all.7 As in Squire, while Dr.
Kafer was aware of the possible law enforcement related con-
sequences of the exam and test results, she was acting as a
medical provider, not as an arm of law enforcement. 72 M.J.
at 290–91 (doctor’s “medical specialty and experience, his sta-



   6  We recognize that we may consider the purpose non-declar-
ants had in facilitating a statement when the declarant knows of
that purpose. After all, “[f]ine distinctions based on the impetus be-
hind the testing and the knowledge of those conducting laboratory
tests” can be relevant in determining whether the declarant’s pur-
pose in making a statement is evidentiary. United States v. Blazier
(Blazier I), 68 M.J. 439, 442 (C.A.A.F. 2010) (quoted in Sweeney, 70
M.J. at 302). The declarant had no such knowledge in this case.
   7 There is some dispute as to whether GB’s mother brought him
to Dr. Kafer at social services’ direction. Even if social services had
directed GB’s mother to take him to Dr. Kafer, the doctor’s actions—
discussed below—show that her primary concern was GB’s medical
treatment, and not whatever interest may have motivated social
services.



                                  12
               United States v. Baas, No. 19-0377/MC
                       Opinion of the Court

tus as a mandatory reporter, and his completion of state man-
dated forms while conducting the examination” did not result
in de facto law enforcement involvement).
   Thus, any alleged law enforcement involvement in direct-
ing GB’s mother to Dr. Kafer had no effect on her primary
purpose in ordering the test. Rather, the test was ordered
from a private lab by a private physician who, upon receiving
the results, prescribed a confirmatory test and treatment by
another private facility. This is a far cry from the facts in
United States v. Gardinier, 65 M.J. 60, 66 (C.A.A.F. 2007),
where we found the victim’s statements to a sexual assault
nurse examiner (SANE) testimonial because the SANE exam-
ined the victim several days after her initial medical exami-
nation and the sheriff’s office had arranged and paid for the
SANE’s examination.
   Further, in an apparent attempt to demonstrate that
NCIS had not followed the proper procedure to get a trust-
worthy test result for GB, during its cross-examination of the
NCIS agent, defense counsel made much of the fact that Dr.
Kafer’s examination was medical and not forensic:
       [DC:]     There was no forensic examination?
       [NCIS:] There was an examination by a licensed
               medical practitioner.
       [DC:]     Right. That would be a medical examina-
                 tion, correct?
       [NCIS:] That was an examination. Yes.
In light of the record, defense counsel’s characterization of Dr.
Kafer’s examination as medical—not forensic—seems apt.
    Appellant also argues that because the gonorrhea swab
came from an infant, the people who ordered and adminis-
tered the test must have been aware that the results would
likely be used in a subsequent criminal prosecution and their
primary purpose was therefore to create an “out-of-court sub-
stitute for trial testimony.” Clark, 135 S. Ct. at 2180. First,
Diatherix expressly refuted that assertion through the Article
39(a), UCMJ, testimony of Dr. Stalons. Second, even if Dia-
therix knew that the test result might be used in court, “that
knowledge alone does not transform what would otherwise be




                                13
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

a statement for the purpose of medical treatment into a testi-
monial statement,” Squire, 72 M.J. at 290, one created as an
“out-of-court substitute for trial testimony.” Clark, 135 S. Ct.
at 2180.
   Finally, as the CCA noted, the test result itself lacks any
indicia of the formality or solemnity characteristic of testimo-
nial statements:
       [T]here is no sworn attestation on the Diatherix lab
       report. Nor is there a statement on the lab report in-
       dicating the tests results were intended for eviden-
       tiary purposes. In fact, the Diatherix lab report con-
       tains no signatures, was not accompanied by any
       chain of custody documentation, and merely consists
       of a single page identifying the patient’s name, the
       “ordering physician,” the date the specimen was col-
       lected, received, and reported, the organisms tested
       for, and an “X” in either a column labeled
       “DETECTED” or “NOT DETECTED,” for each or-
       ganism.
Baas, 2019 CCA LEXIS 173, at *33, 2019 WL 1601912, at *11;
cf. Tearman, 72 M.J. at 61 (internal documents “lack[ed] any
indicia of formality or solemnity that, if present, would sug-
gest an evidentiary purpose”); see contra Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 307 (2009) (affidavit-like “cer-
tificates of analysis” created to serve as evidence at trial were
testimonial). This lack of formality is likely due, in part, to
the fact that Diatherix does not typically do forensic testing
and did not know the test would be used in court.
   The surrounding circumstances indicate that Diatherix’s
primary purpose in testing the sample was diagnostic and not
evidentiary. Therefore, the Diatherix test result was not tes-
timonial and its admission did not violate Appellant’s Sixth
Amendment right to confrontation.
                           B. Daubert
    Appellant argues that the military judge abused his dis-
cretion in admitting the Diatherix test result, based on an er-
roneous application of the factors in Daubert, 509 U.S. at 593–
94. We do not reach the question whether the military judge
misapplied these factors because, even assuming that he did,
Appellant was not prejudiced by the test’s admission.




                                14
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

    The parties agree that the claimed Daubert error is non-
constitutional in nature. Under Article 59(a), UCMJ, the
“finding or sentence of a court-martial may not be held incor-
rect on the ground of an error of law unless the error materi-
ally prejudices the substantial rights of the accused.” 10
U.S.C. § 859(a) (2012). “For nonconstitutional evidentiary er-
rors, the test for prejudice ‘is whether the error had a sub-
stantial influence on the findings.’ ” United States v. Kohlbek,
78 M.J. 326, 334 (C.A.A.F. 2019) (quoting United States v.
Fetrow, 76 M.J. 181, 187 (C.A.A.F. 2017)). The Government
bears the burden of demonstrating that the admitted evi-
dence was not prejudicial. United States v. Flesher, 73 M.J.
303, 318 (C.A.A.F. 2014). “In conducting the prejudice analy-
sis, this Court weighs: (1) the strength of the Government’s
case, (2) the strength of the defense case, (3) the materiality
of the evidence in question, and (4) the quality of the evidence
in question.” Kohlbek, 78 M.J. at 334 (citations omitted) (in-
ternal quotation marks omitted). Based on the entire record,
United States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001), we
conclude that the admission of the Diatherix test result did
not have a “substantial influence on the findings.”
         1. The Strength of the Government’s Case
    The Government’s case was strong. Hailey’s instructions
to Appellant during the Skype chat served for members as a
contemporaneous narration of the live-streamed Skype video
she viewed. See supra pp. 6–9. Nor did Appellant claim, in his
interviews with NCIS or otherwise, that the messages were
either altered or otherwise not representative of his conver-
sations with Hailey. Appellant and Hailey clearly coordinated
the Skype chats involving GB at times he would have access
to GB, and on several occasions Appellant explained to her
that he could not include GB because the child was with his
mother. The lurid and specific directions, the descriptive de-
tails, the remarks regarding the effects of the actions upon
Appellant’s and GB’s anatomy, Appellant’s expression of sex-
ual release, and the length of time over which the admitted
chats occurred alone provided sufficient evidence for the
members to find Appellant guilty.
   Further, Appellant himself admitted to NCIS that he per-
formed the actions described in the messages, albeit that he
did so not on his son, but on GB’s teddy bear—whom he


                              15
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

claimed the two referred to using GB’s name, though every-
one else knew the bear as “Scout.” Appellant gave this same
implausible explanation to social services and his roommate’s
boyfriend. But the Government’s witnesses and admitted ev-
idence were strong proof that the victim of Appellant’s actions
was GB and not his teddy bear.
     For example, Appellant sent pictures of GB in conjunction
with the exchanges to show Hailey that GB would be present
for a video call. When Hailey repeatedly demanded that Ap-
pellant wake GB to perform sexual acts on him, Appellant re-
sponded: “No woman I’m not moving my sleeping child.” Days
later, when Hailey requested that Appellant wake GB “to fin-
ish up from the other night,” Appellant declined because GB
“will be mad because he is hungry.” Taking these statements
at face value, it is doubtful that Appellant made them out of
concern for a teddy bear’s sleep, hunger, or anger. In addition,
there are several points during the calls when Hailey de-
scribed GB’s physical reactions to Appellant’s abuse, and in-
structed Appellant to adjust the camera so that she could see
GB better and not miss Appellant carrying out her direction,
for example: “move the cam[era] over so I can see”; “move the
cam[era] down some on his hole”; “lower[ ]the cam[era] a
[lit]tle . . . show between his legs.”
    Nor could the Government find any physical evidence to
corroborate Appellant’s explanation. NCIS sent the toy to the
U.S. Army Criminal Investigative Laboratory (USACIL) for
testing because some of the messages indicated that Appel-
lant had ejaculated on his son’s stomach. Forensic testing re-
vealed no semen on the teddy bear, and no evidence that it
had been washed. Moreover, as the NCIS agent noted during
Appellant’s interview: “Teddy bear’s [sic] mouths can’t fit a
penis or a ball or a testicle, okay? Teddy bear’s [sic] don’t have
penises that you can put your mouth on, or a penis that you
can stroke, or, you know, they don’t have any of that.”
    Finally, one Government witness testified that Appellant
was “frantic” when he learned his phone was in others’ hands.
Appellant’s roommate testified that Appellant went to his
girlfriend’s house and “bang[ed] on the door asking where his
phone was. . . . The tone of his voice sounded very frantic, con-




                               16
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

cerned.” The members could very well have attributed this re-
action to a concern that the missing phone contained evidence
of wrongdoing.
    In all, the comprehensive digital forensic evidence, the tes-
timony of the Government’s witnesses, and Appellant’s own
statements to NCIS and others—which together rendered Ap-
pellant’s “teddy bear” explanation improbable—made the
Government’s case strong even without GB’s test result.
             2. The Strength of the Defense Case
    Conversely, the Appellant’s case at trial was weak. His
principal defense was that he had performed the described
acts on GB’s green teddy bear and that any reference to GB
in the messages was in fact to that teddy bear—a bear whose
actual name was Scout, the name emblazoned on its chest. As
discussed above, supra pp. 16–17, this defense was improba-
ble. Appellant’s explanation of Hailey’s instructions strains
credulity: descriptions of the victim’s concerns of sleep and
hunger, together with a lack of any physical evidence that a
teddy bear was the object of Hailey’s instructions, belie his
defense. As a result, the defense’s case was weak. Cf. United
States v. Hall, 66 M.J. 53, 55 (C.A.A.F. 2008) (describing the
appellant’s defense as weak because the alternative theories
advanced at trial were implausible).
 3. The Materiality and Quality of the Evidence in Question
    “When assessing the materiality and quality of the evi-
dence, this Court considers the particular factual circum-
stances of each case.” United States v. Washington, __ M.J. __
(8) (C.A.A.F. 2020) (listing considerations this Court has used
in evaluating these factors). On the one hand, the Diatherix
test result, offered in conjunction with Appellant’s positive
test result for gonorrhea, was physical evidence corroborating
the rape specifications. “Standing alone, such [evidence]
might well have been determinative.” Hall, 66 M.J. at 56.
   The vast majority of the Government’s case-in-chief,
though, focused not on gonorrhea, but on Appellant’s state-
ments to NCIS and others regarding the green teddy bear de-
fense, the USACIL tests for semen on the green teddy bear,
and the digital forensic analysis that yielded the texts that




                               17
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

revealed the conduct Appellant engaged in at Hailey’s direc-
tion. Further, the materiality of the Diatherix test was signif-
icantly diminished at trial. The defense expert testified that
Diatherix’s failure to follow its own laboratory procedures, the
clinic’s inability to confirm the positive result with a culture
and properly preserve the specimen, and the unreliable na-
ture of the Diatherix test when used for samples from prepu-
bescent boys made this “one of the worst managed cases that
[she had] dealt with.” She added that because of this low prev-
alence of gonorrhea among prepubescent boys, the test’s “pos-
itive predictive value was essentially zero,” meaning that “the
test was useless in [GB’s] situation.” The members sought
clarification on this point through two different questions to
the defense expert. The first asked “At what prevalence level
is the [positive predictive value] considered too low for the re-
sults of a test on an individual to be considered reliable?” In
response, Dr. Hammerschlag opined, inter alia, that the
NAAT “in this situation—especially since it’s not FDA
cleared, and we have no idea about its performance—should
not be used.” Another member then asked: “Is it your opinion
that the results of a NAAT for rectal swabs in young males
are invalid due to a lack of data when used for identification
of STIs?” Dr. Hammerschlag answered: “I wouldn’t exactly
use the word ‘invalid.’ I think it’s more interpreted with cau-
tion. That they more likely frequently may be invalid; and
that’s why we have to do confirmation.” Both members re-
sponded in the affirmative when the military judge asked
whether these responses answered their questions. Based on
these questions and answers, it is likely that the defense’s at-
tack on the reliability of the test influenced the weight the
members gave that piece of evidence in their deliberations.8
   The Government’s own expert, Dr. Hobbs, readily agreed
that the test sample was mismanaged, that the test result
was not reliable in children, that it “was not appropriate to
use this test without confirmatory testing,” and, damning
with faint praise only that she “found a reasonable chance



   8 None of this is to say that the military judge erred when he
admitted the test result, however. As noted above, supra p. 14, we
are agnostic on that issue.



                               18
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

that the positive test in this case might represent a true pos-
itive.” Dr. Hobbs’s testimony on cross-examination revealed a
host of concerns she harbored as to the test result in this case.
First, Diatherix failed to follow its own protocols when it ac-
cepted the rectal sample without prior authorization, con-
ducted a test on an alleged sexual abuse victim, and utilized
the test with a child. Second, she was concerned that none of
the CDC guidelines were followed and appeared unaware of
the fact that the test had not been subject to peer review. And,
finally, she testified that the potential for cross-reactivity—
that the test could identify other bacteria as gonorrhea—was
“a significant limitation for all NAATs,” especially for rectal
samples from children. Thus, the Government’s own expert
expressed serious reservations about the reliability of the Di-
atherix test result.
    Further, although the Government at closing argued that
the test result corroborated the digital forensic evidence, it
clearly also argued that the test result was not dispositive of
any issue—whether GB in fact had gonorrhea, whether Ap-
pellant raped GB, or whether Appellant transmitted gonor-
rhea to GB. In fact, the Government emphasized that the test
result itself was only a presumptive positive—one that re-
quired confirmatory testing, which did not take place. The
Government’s sparing use of the test result in its opening and
closing statements shows that trial counsel understood that
evidence was not as probative of Appellant’s guilt as were the
messages with Hailey or his admission to NCIS. Cf. United
States v. Brooks, 26 M.J. 28, 29 (C.M.A. 1988) (finding harm-
less error in part because the “trial counsel did not refer to
the objectionable evidence in his argument”). We are per-
suaded that the non-conclusive test result, whose reliability
was questioned by expert witnesses for both parties, was not
qualitatively significant to the members’ findings of guilt.
    Appellant nonetheless suggests that the members’ mixed
verdict shows the admission of the test result was prejudicial.
In his view, acquittal of the specifications alleged as on or
about May 2, 2016, show that the members viewed the posi-
tive test result—determined from a rectal sample—as the key
piece of evidence because this was the only conversation in
which Appellant and Hailey did not discuss anal penetration
of GB by Appellant. We disagree.


                               19
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

    As an initial matter, the specification charged conduct on
or about May 2. No “conduct” occurred until May 3, and nei-
ther counsel requested, nor did the military judge offer, an
instruction that as a matter of law “on or about” could include
May 3. More importantly, even if the members considered the
May 3 conduct, that conduct was quantitatively and qualita-
tively different than that on March 29 and May 15. First, the
portion of the Skype video call describing conduct on May 3
lasted eleven minutes, as compared to forty-five minutes on
March 29, and twenty-five minutes on May 15. Second, qual-
itatively, the conduct on May 3 did not clearly and unequivo-
cally describe rape of a child, while the conduct on March 29
and May 15 did.
    The military judge instructed the members that in order
to find Appellant guilty of rape of a child, they had to be con-
vinced beyond a reasonable doubt that Appellant “committed
a sexual act upon GB.” “Sexual act” was defined as “the pene-
tration, however slight, of the . . . anus or mouth by the pe-
nis,” or by any other body part or object if done with the intent
to “arouse or gratify the sexual desire of any person.” (Em-
phasis added). In order to find Appellant guilty of the pornog-
raphy specifications, the members had to find that Appellant
produced and distributed “a video of a minor engaging in sex-
ually explicit conduct.” The military judge defined “sexually
explicit conduct” as, inter alia, “actual or simulated . . . sexual
intercourse or sodomy, including genital-genital, oral-genital,
anal-genital, or oral-anal” sodomy.
    The trial counsel in his closing argued that “on May 2,
2016 [Appellant] suck[ed] his son’s penis.” Although Hailey
directed Appellant to “kiss down him . . . his dick a little,” she
did not clearly direct him in that conversation to penetrate
GB’s mouth with his penis—in stark contrast to the clear di-
rections on March 29, 2016, and May 15, 2016, see supra pp.
6–7, 9, to sodomize his son both orally and anally. Similarly,
a close reading of that conversation could lead the members
to conclude that Appellant did not produce or distribute child
pornography, as defined in the military judge’s instructions,
because it did not unequivocally describe penetration of any
kind.
   In sum, the members were directed to find Appellant
guilty only if they were convinced of guilt beyond a reasonable


                                20
             United States v. Baas, No. 19-0377/MC
                     Opinion of the Court

doubt. For all the reasons stated above, we disagree that the
test result, obtained from GB’s rectal sample, was the sub-
stantial reason the members found Appellant guilty of the
specifications related to March 29 and May 15, and not guilty
of the specifications for conduct on May 2. We find it far more
likely that the members listened carefully to the military
judge’s instructions on these charges, weighed the evidence,
and applied the definitions precisely in their deliberations.
   Although the admission of the test result may have had
some influence on the findings, we are persuaded that, based
on the entire record, it did not have a “substantial influence
on the findings.” Kohlbek, 78 M.J. at 334. Even if the military
judge erred in admitting the test result, therefore, Appellant
suffered no prejudice.
                       III. Conclusion
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




                              21
              United States v. Baas, No. 19-0377/MC


   Judge MAGGS, concurring in part and concurring in the
judgment.
    I concur with the Court’s opinion except part II.B., and I
concur in the Court’s judgment. Appellant asserts before this
Court, as he did before the United States Navy-Marine
Corps Court of Criminal Appeals (NMCCA), that the mili-
tary judge abused his discretion in admitting a laboratory
test showing that Appellant’s infant son had gonorrhea. He
contends that the military judge either misapplied or failed
to consider six factors identified in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 593–95 (1993), for determining
whether expert testimony and scientific evidence are suffi-
ciently reliable and relevant to be admitted.1 The NMCCA
disagreed, rejecting Appellant’s contentions point by point. I
agree with the NMCCA’s analysis. I would affirm its judg-
ment on the basis that the evidence was properly admitted
under Daubert, rather than on the alternative grounds now
adopted by the Court.2


   1  We have described the Daubert factors in slightly different
ways in our cases. Compare United States v. Henning, 75 M.J.
187, 191 n.15 (C.A.A.F. 2016), with United States v. Sanchez, 65
M.J. 145, 149 (C.A.A.F. 2007). The Daubert factors challenged in
this case are: (1) whether the theory or technique can be (and has
been) tested; (2) whether the theory or technique has been sub-
jected to peer review and publication; (3) the known or potential
error rate; (4) the existence and maintenance of standards control-
ling the technique’s operation; (5) the degree of acceptance within
the relevant scientific community; and (6) whether the probative
value of the evidence is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.
See Daubert, 509 U.S. at 593–95 (discussing these subjects). Mili-
tary judges also must consider additional factors identified in
United States v. Houser, 36 M.J. 392 (C.M.A. 1993). In this case,
however, Appellant has generally limited his arguments to the
Daubert factors listed above.
   2  The Court assumes (without deciding) that the military
judge abused his discretion by admitting the evidence in question
but concludes that any error was harmless. I do not join the Court
on this point because if admission of the evidence was in error, I
do not believe that the Government could meet its burden of show-
ing that the error did not have a substantial influence on the find-
ings or the sentence. See United States v. Young, 55 M.J. 193, 197
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

                    I. The Daubert Factors
    The Supreme Court held in Daubert that a trial judge
has a “gatekeeping role,” requiring the judge to “ensure that
any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Id. at 589, 597. The Supreme
Court recognized that “[m]any factors will bear on the in-
quiry” of whether scientific evidence is reliable. Id. at 593.
The Supreme Court discussed several of these factors with-
out “presum[ing] to set out a definitive checklist or test.” Id.
When an appellant challenges admission of scientific evi-
dence, this Court first determines de novo whether a mili-
tary judge fulfilled this gatekeeping function. United States
v. Flesher, 73 M.J. 303, 311 (C.A.A.F. 2014). If “the Daubert
framework is properly followed, this court ‘will not overturn
the ruling unless it is manifestly erroneous.’ ” Henning, 75
M.J. at 191 (quoting United States v. Griffin, 50 M.J. 278,
284 (C.A.A.F. 1999)).
    In this case, the military judge conducted a Daubert
hearing and issued written findings of fact and conclusions
of law. In his ruling, the military judge properly identified
the relevant rules of evidence, the Houser factors, and the
Daubert factors, and discussed the application of these rules
and factors to the facts of the case. Appellant argues that
the military judge did not specifically discuss all of the
Daubert factors, but the Supreme Court and this Court have
made clear that the inquiry is flexible, not mandating con-
sideration of each factor. Daubert, 509 U.S. at 594; Kumho


(C.A.A.F. 2001) (considering whether erroneously admitted evi-
dence had a substantial influence on the findings and sentence).
The laboratory test was the only physical evidence to corroborate
the Government’s argument, based on the Skype messages, that
Appellant penetrated his infant son’s anus with his penis. These
messages consisted almost entirely of instructions from “Hailey
Burtnett” rather than descriptions of what she saw or admissions
by Appellant regarding what he did, and were ambiguous regard-
ing the specific issue of whether Appellant penetrated his son’s
anus with his penis on the dates in question. In addition, the evi-
dence that Appellant transmitted gonorrhea to his infant son
while raping him likely had a substantial influence on Appellant’s
sentence.




                                2
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Sanchez,
65 M.J. at 149. Accordingly, I agree with the NMCCA that
the military judge understood and fulfilled his gatekeeping
role.
   The issue then becomes whether the military judge’s rul-
ing was “manifestly erroneous.” Henning, 75 M.J. at 191 (in-
ternal quotation marks omitted) (quoting Griffin, 50 M.J. at
284). Appellant makes six challenges to the military judge’s
application of the Daubert factors. Considering each of these
challenges in turn, I agree with the NMCCA’s conclusion
that the military judge’s rulings were not manifestly errone-
ous.
    Appellant’s first challenge concerns the Daubert factor
requiring trial judges to consider “whether the theory or
technique . . . can be (and has been) tested.” 509 U.S. at 593.
The military judge concluded that this factor favored admis-
sion because the laboratory test had been confirmed by both
a validation study and by the results of blind samples sent
to the laboratory. Appellant does not dispute these facts but
contends that the laboratory test had never been confirmed
using child rectal samples. The military judge recognized
this distinction but reasoned that the validation study and
the results of the blind samples confirmed “the general sci-
entific principles behind the test” even if the data were not
exactly the same. The NMCCA agreed with the military
judge on this point, and so do I. Discussing the Daubert fac-
tors in General Electric Co. v. Joiner, 522 U.S. 136, 146
(1997), the Supreme Court recognized that experts “com-
monly extrapolate from existing data” and that this practice
is acceptable unless “there is simply too great an analytical
gap between the data and the opinion proffered.” Appellant
has not convincingly explained why any gap is too great in
this case. His principal arguments are only that one expert
“noted rectal gonorrhea creates unique issues for gonorrhea
tests” and that the Centers for Disease Control and Preven-
tion (CDC) require confirmatory testing by culture for child
rectal samples.
   The second Daubert factor challenged by Appellant is
“whether the theory or technique has been subjected to peer
review and publication.” 509 U.S. at 593. The military judge




                              3
              United States v. Baas, No. 19-0377/MC
       Judge MAGGS, concurring in part and in the judgment

concluded that this factor favored admission. Even though
the specific test used in this case has not been subjected to
peer review, the military judge found that other tests using
similar science have been. Appellant, however, argues that
peer review of similar tests is not sufficient. He asserts that
“peer review must be specific to the particular test used by
the laboratory.” Like the NMCCA, I disagree with Appel-
lant. Such exactness is not required. The Supreme Court has
explained that Daubert’s “list of factors was meant to be
helpful, not definitive” and that it “might not be surprising
in a particular case, for example, that a claim made by a sci-
entific witness has never been the subject of peer review, for
the particular application at issue may never previously
have interested any scientist.” Kumho Tire Co., 526 U.S. at
151. Given that peer review is not required at all, the mili-
tary judge did not commit manifest error in concluding that
peer review of tests that rely on similar science weighed in
favor of admission.
    The third Daubert factor challenged by Appellant is the
“known or potential error rate.” 509 U.S. at 594. As this fac-
tor was perhaps the most disputed at trial, it is worth quot-
ing the relevant portion of the military judge’s written find-
ings of fact and conclusions of law. The military judge
assessed what three expert witnesses said about the labora-
tory test, which had been conducted by Diatherix Laborato-
ries Inc., asserting:
        [T]he error rate . . . is acceptable. Dr. Stalons testi-
        fied Diatherix had a 100% accuracy rate in testing
        for gonorrhea. Dr. Hobbs testified that Diatherix’s
        test produced scientifically valid results. However,
        according to both Dr. Hobbs and Dr. Ham-
        merschlag, test results in the pediatric population
        are considered less reliable. Dr. Hammerschlag tes-
        tified that the PPV for this test as used was either
        50% or lower, or 30%.3 The court finds that the
        likelihood of a false positive associated with the
        testing population does not undermine the scien-


   3 PPV stands for positive predictive value. In a footnote on this
point, the military judge explained: “A PPV of 30% means there is
a 30% chance the test is correct (i.e. 70% chance it is incorrect).”




                                   4
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

      tific principles upon which the test is based. It was
      clear from Dr. Hobbs and Hammerschlag that there
      is a potential for a false positive. However, it was
      not clear what the actual likelihood might be. Es-
      pecially considering that Dr. Hobbs did not attach
      any quantitative value to the possibility and Dr.
      Hammerschlag’s inconsistent testimony regarding
      the PPV.
    In challenging the military judge’s conclusions, Appellant
asserts that to be reliable, a test “must at least establish
that a test result is at least more likely than not to be cor-
rect.” He argues that in assessing the reliability of the la-
boratory test, the military judge erred because he relied on
the accuracy of the test rather than the positive predictive
value (PPV) of the test. He asserts that the test’s PPV was
so low in this case that the test did not meet the minimum
requirement for reliability. He explains that “Dr. Ham-
merschlag testified that the ‘positive predictive value’ was
under 50%, meaning that any positive result was no more
accurate than a coin flip.”
    Appellant’s argument ignores the military judge’s con-
trary findings and conclusions. As the quotation above
shows, the military judge considered both the test’s accuracy
and its PPV. Although Appellant draws on Dr. Ham-
merschlag’s testimony, the military judge found this expert
witness was inconsistent and was contradicted by another
expert witness. I assume that a test with a known error rate
greater than 50% is not reliable. But the military judge did
not find that this test had a known error rate that was
greater than 50%. Instead, the military judge found that the
actual rate of false positives “was not clear.” This finding of
fact was not clearly erroneous. And we have repeatedly held
that an unknown error rate does not automatically make a
scientific test inadmissible. See Sanchez, 65 M.J. at 151
(“Nothing in the precedents of the Supreme Court or this
Court requires that a military judge either exclude or admit
expert testimony because it is based in part on an interpre-
tation of facts for which there is no known error rate or
where experts in the field differ in whether to give, and if so
how much, weight to a particular fact in deriving an opin-
ion.”); United States v. Youngberg, 43 M.J. 379, 386
(C.A.A.F. 1995) (finding that military judge did not commit




                               5
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

plain error in admitting scientific evidence, despite the ap-
pellant’s complaint that there was no evidence of error
rates); United States v. Bush, 47 M.J. 305, 312 (C.A.A.F.
1997) (finding that military judge did not abuse his discre-
tion in admitting hair evidence even where there was no ev-
idence showing error rate for hair-analysis procedure).
Based on all the testimony considered, the military judge’s
conclusion that the error rate was acceptable was not mani-
festly erroneous.
    The fourth Daubert factor challenged by Appellant is “the
existence and maintenance of standards controlling the
technique’s operation.” 509 U.S. at 594. The military judge
cited this factor but did not discuss it. Appellant now argues
that the testing laboratory failed to follow two of its own pol-
icies. One policy was that users generally must obtain pre-
approval before submitting anything other than an “en-
docervical swab, vaginal swab, ThinPrep Pap solution,
urethral swab and urine” to be tested. Under this policy, the
physician who submitted the rectal sample to the laboratory
should have obtained preapproval but he apparently did not.
Another policy was that the laboratory generally did not
conduct tests for the evaluation of suspected sexual abuse.
    The NMCCA rejected Appellant’s concerns about these
policies, asserting that the military judge was not required
to decide whether every Daubert factor was satisfied. I agree
with this point, especially because it is not clear that Appel-
lant challenged the fourth Daubert factor before the military
judge. Appellant also has not satisfactorily explained why a
violation of the first policy would undermine the reliability
of the laboratory test. Nor has Appellant established a viola-
tion of the second policy. The test in fact was done for diag-
nostic purposes, not for the evaluation of suspected sexual
abuse.
    The fifth Daubert factor challenged by Appellant is the
“degree of acceptance within [the relevant scientific commu-
nity].” 509 U.S. at 594 (internal quotation marks omitted)
(citation omitted). The military judge found that this factor
favored admission of the evidence because the CDC general-
ly allow tests based on similar science to be used for detect-
ing sexually transmitted infections. Appellant, however, ar-




                               6
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

gues that using this kind of test “on prepubescent child
swabs and without confirmatory testing is not accepted in
the scientific community.” The distinction that Appellant
identifies is correct but Appellant has offered no persuasive
reasons that this distinction makes the test unreliable. In
addition, Appellant is again insisting on more than what the
Supreme Court has required. The Supreme Court made
clear in Daubert that a “ ‘reliability assessment does not re-
quire, although it does permit, explicit identification of a rel-
evant scientific community and an express determination of
a particular degree of acceptance within that community.’ ”
Id. (quoting United States v. Downing, 753 F.2d 1224, 1238
(3d Cir. 1985)).
    The sixth Daubert factor challenged by Appellant is
whether the “probative value [of the evidence] is substantial-
ly outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury.” Id. at 595 (internal quo-
tation marks omitted) (citation omitted). This factor comes
from Federal Rule of Evidence 403, which corresponds to
Military Rule of Evidence 403. Id. The military judge con-
sidered this issue carefully. He explained on the record his
conclusion that “the test results serve to corroborate the al-
legations that the accused sexually assaulted his son.” He
concluded that this probative value substantially out-
weighed any unfair prejudicial effect, explaining that Appel-
lant could use his expert witnesses and cross-examination to
ensure that the members gave proper weight to the test re-
sults. Although Appellant disagrees, this is the kind of deci-
sion for which military judges are entitled to considerable
deference when they explain their reasoning. I agree with
the NMCCA that the military judge did not commit manifest
error on this point.
                        II. Conclusion
    The Supreme Court has explained that the objective of
Daubert is “to make certain that an expert, whether basing
testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., 526 U.S. at 152. That is what hap-
pened in this case. The Government sought to introduce




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            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

nothing more than the results of a laboratory test that were
actually used and relied on by medical professionals to diag-
nose a child so that he could receive appropriate treatment.
    The Supreme Court in Daubert did not describe an ad-
missibility test that is so precise and technical that any gap,
conflict, or ambiguity that arises when considering the vari-
ous factors requires exclusion of the evidence. The Supreme
Court also did not describe a test requiring every decision by
a trial judge to be scrutinized in all its minutiae. On the con-
trary, the Supreme Court has emphasized that “the trial
judge must have considerable leeway in deciding in a partic-
ular case how to go about determining whether particular
expert testimony is reliable.” Id. And while the military
judge has this flexibility in performing his gatekeeping func-
tion, if the judge decides to admit scientific evidence, counsel
remain free to challenge its weight—as Appellant’s attor-
neys ably did in this case. See Daubert, 509 U.S. at 596
(“Vigorous cross-examination, presentation of contrary evi-
dence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.”).
     In this case, the military judge responsibly considered
the Daubert factors before determining that the test results
that the victim’s physician had actually relied on were relia-
ble. For all the reasons above, the military judge performed
his gatekeeping function and did not make any manifest er-
ror.




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