                        UNITED STATES, Appellee

                                     v.

                  Arthur MASON, Jr., Staff Sergeant
                         U.S. Army, Appellant

                              No. 03-0259

                         Crim. App. No. 9601811

       United States Court of Appeals for the Armed Forces

                      Argued      March 3, 2004
                      Decided     May 4, 2004

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                  Counsel

For Appellant: Captain Kathy Martin (argued); Colonel Robert D.
Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson
G. Lambert (on brief); Lieutenant Colonel E. Allen Chandler,
Jr., Major Jeanette K. Stone, and Captain Linda A. Chapman.

For Appellee: Captain Ryan R. McKinstry (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Captain
Mark A. Visger (on brief); Captain Tami L. Dillahunt.

Amicus Curiae for Appellee: Marc A. DeSimone, Jr. (law student)
(argued); Susan J. Hankin, Esq. (supervising attorney) and
Michael Haslup (law student) (on brief) – for the University of
Maryland School of Law.

Military Judges: G. O. Varo (first trial); R. F. Holland
(retrial).




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mason, No. 03-0259/AR


          Chief Judge CRAWFORD delivered the opinion of the Court.

       On November 2, 1996, a general court-martial composed of

officer and enlisted members convicted Appellant, contrary to

his pleas, of rape, aggravated assault with a dangerous weapon,

burglary, and communication of a threat, in violation of

Articles 120, 128, 129, and 134, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 928, 929, and 934

(2000).    The convening authority approved the adjudged sentence

to a dishonorable discharge, confinement for eight years,

forfeiture of all pay and allowances, and reduction to pay-grade

E-1.

       On June 30, 1999, the Army Court of Criminal Appeals set

aside the findings and sentence for Appellant’s first trial

based on an improper ruling by the military judge on a defense

challenge for cause against a member.    United States v. Mason,

Army No. 9601811 (A. Ct. Crim. App. 1999).    A rehearing was

authorized.

       On March 31, 2000, Appellant was retried by a general

court-martial composed of officer and enlisted members and,

contrary to his pleas, was found guilty of rape and burglary, in

violation of Articles 128 and 129.     The members sentenced

Appellant to a dishonorable discharge, ten years of confinement,

total forfeitures, and reduction to pay grade E-1.    The

convening authority approved only so much of the sentence as


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United States v. Mason, No. 03-0259/AR


provided for a dishonorable discharge, eight years of

confinement, total forfeitures, and reduction to E-1, and

credited him with 922 days of confinement.

     On January 27, 2003, the Army Court affirmed the findings

and sentence.   United States v. Mason, 58 M.J. 521 (A. Ct. Crim.

App. 2003).   On September 30, 2003, this Court granted review of

the following issues:1

     I.    WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
           DEFENSE MOTION TO SUPPRESS BLOOD TEST RESULTS AND
           RELATED DNA EVIDENCE. (A) WAS THERE A BASIS FOR
           CONCLUDING THAT PROBABLE CAUSE EXISTED? (B) DID
           THE AGENTS PROVIDE FALSE AND MISLEADING
           INFORMATION AND OMIT MATERIAL FACTS WHEN SEEKING
           THE WARRANT THAT WAS ISSUED TO OBTAIN A SAMPLE OF
           APPELLANT’S BLOOD?

     II.   WHETHER THE MILITARY JUDGE ERRED IN OVERRULING
           THE DEFENSE OBJECTION TO THE GOVERNMENT’S
           QUESTION TO ITS DNA EXPERT REGARDING WHETHER THE
           DEFENSE HAD REQUESTED THE EVIDENCE BE RETESTED.
           DID THIS QUESTION IMPROPERLY SHIFT THE BURDEN TO
           THE DEFENSE TO PROVE APPELLANT’S INNOCENCE?

     III. WHETHER THE ARMY COURT ERRED BY HOLDING THAT THE
          DEFENSE HAD OPENED THE DOOR FOR THE GOVERNMENT’S
          QUESTION ABOUT DNA RETESTING BY RAISING THE ISSUE
          OF WHETHER FURTHER TESTING OF THE AVAILABLE DNA
          MATERIAL FROM THE RAPE COULD HAVE EXONERATED
          APPELLANT.




1
  We heard oral argument in this case at the University of
Maryland School of Law, Baltimore, Maryland, as part of the
Court's "Project Outreach." This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the quality of the military
criminal justice system.

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United States v. Mason, No. 03-0259/AR


     For the reasons set forth below, we affirm the findings and

sentence.

                              FACTS

     The Army Court of Criminal Appeals summarized the

preliminary facts of the case as follows:

          At 0529 [on March 10, 1995,] Specialist (SPC) P,
     who lived in quarters on Fort Riley with his wife and
     two children, went to work. His spouse, Mrs. P,
     stayed in bed with their 18-month-old baby sleeping
     next to her. A few minutes after SPC P left, Mrs. P
     heard the front door open. Then she heard someone
     moving down the hallway towards her bedroom. Mrs. P
     believed that her husband had returned because he had
     forgotten his hat. When the person entered her
     bedroom, she screamed. The person was not her
     husband. Mrs. P said that the intruder brandished a
     knife and threatened her son's life unless she stopped
     screaming. The intruder then raped Mrs. P. By 0537
     the attacker had left Mrs. P's quarters. At trial and
     on appeal, the defense did not contest that Mrs. P had
     been raped.

          Mrs. P called her husband at work at about 0537
     and told him she had just been raped. She then called
     the military police. At about 0545, first the
     military police and then the U.S. Army Criminal
     Investigation Command (CID) special agents arrived at
     SPC P's quarters. Mrs. P described her assailant to
     CID and at the retrial, as "a [B]lack [sic] male,
     around 5'6" to 5'7" tall, stocky build, around 150 to
     160 pounds; he had razor bumps, a big nose. . . .
     [and] a slight mustache." He was dressed in an Army
     physical training (PT) uniform with a black wool cap.
     Mrs. P was unable to see her attacker's teeth, nor did
     she describe any other distinguishing features of the
     rapist. Appellant is a Black [sic] male, 5'5" tall,
     and weighed 172 pounds. At the time of the rape, he
     had a slight mustache and an intermittent problem with
     razor bumps. Neither SPC P nor Mrs. P knew appellant.

          While Mrs. P was being raped, she tried to remove
     her assailant's cap to get a better look at his face.


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United States v. Mason, No. 03-0259/AR


     He knocked her hand away, covered her eyes, and told
     her not to look at him. Thereafter, he told her to
     roll over onto her front, so her face was in her
     pillow. He continued to engage in sexual intercourse
     until he ejaculated. Mrs. P's bedroom was dark; she
     is near-sighted and was not wearing her glasses during
     the rape.

     . . . .

          Mrs. P's vagina was swabbed as part of the rape
     kit procedure and the swabs and her panties were sent
     to the [United States Army Criminal Investigation
     Laboratory (USACIL)] for testing. At USACIL, lab
     personnel found semen on Mrs. P's panties and on the
     vaginal swabs. Testing revealed that the rapist had
     blood-type B, which matched appellant's blood type.
     Blood-type B is shared by approximate 19% of the total
     Black [sic] population. Specialist P and three other
     possible suspects did not have blood-type B.

Id. at 522-23 (footnotes omitted).

     Mrs. P was presented with several line-ups as an

opportunity to identify her assailant.   During a physical line-

up which did not include Appellant, Mrs. P identified an

individual, whom she knew socially, as closely resembling her

rapist.   Mrs. P noted that the individual was not actually the

rapist.   Mrs. P was also shown Appellant’s picture in a

photographic line-up, but did not identify him as the rapist.

     Nearly two months after the rape, early on the morning of

May 5, 1995, a vehicle was seen leaving the Fort Riley Child

Development Center (CDC), reportedly carrying a black male who

had acted suspiciously in the CDC parking lot on an earlier

occasion.   Appellant was identified as the owner of that



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United States v. Mason, No. 03-0259/AR


vehicle.    CDC staff noted the incident because they were on

alert for suspicious behavior due to some recent purse

snatchings from parked vehicles.

     In August, a military police investigator reported to the

CID that Appellant matched the assailant’s description provided

by Mrs. P.    The CID subsequently obtained a search authorization

from a military magistrate to seize a sample of Appellant’s

blood.    The sample was sent to the crime laboratory, which

matched Appellant’s blood to the semen evidence obtained from

Mrs. P.    As a result of the match, Appellant was charged with

the crimes against Mrs. P.

                              DISCUSSION

I.   The Military Judge did not Err in Denying the Defense
     Motion to Suppress Blood Test Results and Related DNA
     Evidence

          The search authorization for Appellant’s blood sample was

issued by Captain Oclander at Fort Bragg, North Carolina,

following Appellant’s reassignment to that post.   Captain

Oclander was appointed to be a part-time magistrate shortly after

she arrived on post as a judge advocate.   The authorization was

based on information provided to Captain Oclander by CID agent

Eric Bruce, who submitted an affidavit and made an oral statement

to Captain Oclander to support his search authorization request.

The information he provided to Captain Oclander included the

following key points:


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United States v. Mason, No. 03-0259/AR


       •     Appellant was identified as the owner of a car that

             was hastily driven away from the Child Development

             Center on Fort Riley, after the driver was questioned

             by the Military Police about recent purse snatchings.

       •     Appellant was a stocky, black male between five foot

             four and five foot six, and therefore matched the

             general description of the rapist provided by Mrs. P.

       •     Appellant’s military specialty required that he be

             issued Nomex gloves, and a Nomex glove had been left

             by the assailant at the rape scene.

       •     Appellant lived on post approximately one to two

             blocks from where the rape victim lived.

       •     Appellant had type B blood, which was the blood type

             of the person who left semen in Mrs. P.

       Agent Bruce based his affidavit and request in part on

information he obtained from a CID agent assigned to the case.

At trial, Captain Oclander was asked which specific facts were

important to her when she issued the search authorization.       She

responded:

     The description was important, the Nomex glove was
     important, the location of his residence in relation
     to the victim’s residence, the blood type in relation
     to the assailant’s blood type, and the fact that
     because of his being seen at the Child Development
     Center on several occasions would have given him
     perhaps an opportunity to have been at the scene that
     day.


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United States v. Mason, No. 03-0259/AR


     Appellant moved at trial to suppress his blood sample from

evidence, arguing that the authorization issued to obtain the

sample was invalid because the magistrate lacked probable cause

to issue the authorization, and the CID omitted material

exculpatory information from the affidavit presented to the

magistrate in support of the authorization.   The judge denied

Appellant’s motion to suppress, concluding as follows:

          Assessing all of these things from the
     perspective of whether there’s probable cause, with
     all of these clarifications and amplifications that
     the defense complains were left out of the information
     provided, is not only sufficient, in my judgment to
     provide probable cause, but it is more than a basis
     for reasonable belief that if Staff Sergeant Mason was
     examined, evidence might be obtained.

          Further, as the 11th Circuit formulation cited by
     the defense, it provides more than a fair possibility
     of finding such evidence by a search of Staff Sergeant
     Mason’s person for blood samples or other bodily
     fluids. That’s not to say that it rises to the level
     of being clear and convincing evidence of his guilt,
     but that is not the standard for judging this.

          The approach that I’ve just used is taken by
     extension from M.R.E. 311(g)(2), but it is also taken
     from the case cited by the defense, which is included
     in the record as an appellate exhibit from yesterday’s
     session, State of South Carolina versus Missouri,
     where the court excluded the false information and
     inserted the exculpatory information and evaluated
     whether, taken in that light, there remained a
     substantial basis upon which the Magistrate could have
     found probable cause to issue the warrant. Applying
     that analysis, I don’t believe that there’s any reason
     that probable cause cannot be found within this
     information. And my conclusion of law is that there
     was probable cause. Accordingly, the defense motion
     to suppress is denied.



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United States v. Mason, No. 03-0259/AR


     This Court now reviews for an abuse of discretion the

military judge’s decision to admit the blood sample into

evidence.   United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.

1995).   We hold, first, that the magistrate had probable cause

to issue the search authorization for Appellant’s blood, and,

second, that Appellant has failed to meet his substantial burden

under Franks v. Delaware, 438 U.S. 154 (1978), to show that the

information allegedly omitted from the CID affidavit would have

extinguished probable cause had that information been included.

Consequently, the military judge did not abuse his discretion in

denying Appellant’s motion to suppress.

     A. The Magistrate had Probable Cause to Issue the Search
        Authorization for Appellant’s Blood Sample

     Appellant first avers that the information based on which

the military magistrate issued the search authorization for

Appellant’s blood sample was insufficient to establish probable

cause.   We disagree.

     “Nonconsensual extraction of blood from an individual may

be made pursuant to a valid search authorization, supported by

probable cause.”   United States v. Carter, 54 M.J. 414, 418

(C.A.A.F. 2001)(citing Military Rule of Evidence 312(d)

[hereinafter M.R.E.]).   M.R.E. 315(f)(2) provides that

“[p]robable cause to search exists when there is a reasonable

belief that the person, property, or evidence sought is located



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United States v. Mason, No. 03-0259/AR


in the place or on the person to be searched.”    A probable cause

determination is precisely

        a practical, common-sense decision whether, given all
        the circumstances set forth in the affidavit before
        him, including the “veracity” and “basis of knowledge”
        of persons supplying hearsay information, there is a
        fair probability that contraband or evidence of a
        crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983)(emphasis added).

“[T]he duty of a reviewing court is simply to ensure that the

magistrate had a ‘substantial basis for . . . [concluding]’ that

probable cause existed.”    Id. at 238-39 (quoting Jones v. United

States, 362 U.S. 257, 271 (1960)).

        Importantly, “a determination of probable cause by a

neutral and detached magistrate is entitled to substantial

deference.”    United States v. Maxwell, 45 M.J. 406, 423

(C.A.A.F. 1996)(quoting United States v. Oloyede, 982 F.2d 133,

138 (4th Cir. 1993)).    “[R]esolution of doubtful or marginal

cases . . . should be largely determined by the preference . . .

[for] warrants. . . . Close calls will be resolved in favor of

sustaining the magistrate's decision.”    United States v. Monroe,

52 M.J. 326, 331 (C.A.A.F. 2000)(quoting Maxwell, 45 M.J. at

423).    “A grudging or negative attitude by reviewing courts

towards warrants . . . is inconsistent with the Fourth

Amendment's strong preference for searches conducted pursuant to

a warrant.”    Gates, 462 U.S. at 236 (citations omitted).



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United States v. Mason, No. 03-0259/AR


     In reviewing a probable cause determination, courts should

consider “the information made known to the authorizing official

at the time of his decision . . . [which] must be considered in

the light most favorable to the prevailing party.”    Carter, 54

M.J. at 418 (citations omitted).     The magistrate could also

consider information known to her personally.    M.R.E.

315(f)(2)(C).   Thus, the key inquiry is whether all the

information presented in the affidavit and orally by CID agent

Bruce or known to the magistrate personally, considered

cumulatively, was sufficient to show a fair probability that

evidence of a crime would be found in the place to be searched –

in this case, DNA evidence found in Appellant’s blood.

“[C]ourts should not invalidate the warrant by interpreting the

affidavit in a hypertechnical, rather than a commonsense,

manner.”   United States v. Ventresca, 380 U.S. 102, 109 (1965).

     The military magistrate testified that the following

evidence influenced her probable cause determination:

     The description was important, the Nomex glove was
     important, the location of his residence in relation
     to the victim’s residence, the blood type in relation
     to the assailant’s blood type, and the fact that
     because of his being seen at the Child Development
     Center on several occasions would have given him
     perhaps an opportunity to have been at the scene that
     day.

We agree with the military judge that, in noting the totality of

these circumstances and applying her common sense, the



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United States v. Mason, No. 03-0259/AR


magistrate had a substantial basis to conclude that probable

cause existed.   Indeed, the information based on which the

magistrate issued the search authorization, considered

cumulatively, supported a reasonable belief that evidence of a

crime, in the form of DNA, would likely be found in Appellant –

who had the physical features and blood type of the rapist, who

was known to have owned gloves similar to those left at the

crime scene, who lived near the victim, and who was identified

as the owner of a car seen near the crime site at the same time

of day as the crime, albeit almost two months later, thus

“giv[ing] [Appellant] perhaps an opportunity to have been at the

scene that day.”

     Accordingly, we find no error in the military judge’s

denial of Appellant’s motion to suppress the blood sample on the

grounds that probable cause was lacking.   United States v.

Allen, 53 M.J. 402, 408 (C.A.A.F. 2000)(military judge’s

findings of fact on probable cause “are binding unless they are

clearly erroneous”).

     B. Appellant has Failed to Demonstrate that the Information
        Omitted from the Affidavit Would Have Extinguished
        Probable Cause had it been Included

     Appellant also asserts that the CID intentionally or

recklessly omitted material information from the affidavit

supporting the search authorization, thereby rendering the

authorization invalid.   We disagree.


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United States v. Mason, No. 03-0259/AR


     M.R.E. 311(g)(2) addresses a motion to exclude evidence

obtained from a search authorization which allegedly contained

false information.   The rule provides:

     If the defense makes a substantial preliminary showing
     that a government agent included a false statement
     knowingly and intentionally or with reckless disregard
     for the truth in the information presented to the
     authorizing officer, and if the allegedly false
     statement is necessary to the finding of probable
     cause, the defense, upon request, shall be entitled to
     a hearing.

M.R.E. 311(g)(2) (emphasis added).   “[I]f [the defense shows

intentional or reckless disregard], and if, when material that

is the subject of the alleged falsity or reckless disregard is

set to one side, there remains sufficient content in the warrant

affidavit to support a finding of probable cause, no hearing is

required.”   Franks, 438 U.S. at 171-72.   Neither M.R.E.

311(g)(2) nor Franks expressly extends to omissions.    Logically,

however, the same rationale extends to material omissions.

“Franks protects against omissions that are designed to mislead,

or that are made in reckless disregard of whether they would

mislead, the magistrate.”   United States v. Colkley, 899 F.2d

297, 301 (4th Cir. 1990).

     Importantly, for an accused to receive a hearing, and

therefore potential relief, on these grounds, the defense must

demonstrate that the omissions were both intentional or

reckless, and that their hypothetical inclusion would have



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United States v. Mason, No. 03-0259/AR


prevented a finding of probable cause.   United States v.

Figueroa, 35 M.J. 54, 56-57 (C.M.A. 1992).   Indeed, “[e]ven if a

false statement or omission is included in an affidavit, the

Fourth Amendment is not violated if the affidavit would still

show probable cause after such falsehood or omission is redacted

or corrected.”   United States v. Gallo, 55 M.J. 418, 421

(C.A.A.F. 2001)(quoting Technical Ordnance, Inc. v. United

States, 244 F.3d 641, 647 (8th Cir. 2001))(emphasis added).

     Appellant contends that the CID agents intentionally or

recklessly withheld the following material, exculpatory

evidence:

       •    During a physical line-up that did not include

            Appellant, Mrs. P identified another soldier, whom she

            knew socially, as closely resembling the rapist,

            though she stated he was not actually the rapist.

            During a photographic line-up that did include

            Appellant’s picture, Mrs. P was unable to identify the

            rapist.

       •    A latent fingerprint lifted from the inside front

            doorknob at the P’s residence did not match

            Appellant’s fingerprints.

       •    Appellant had a prominent gold front tooth that was

            missing from Mrs. P’s physical description of her

            attacker.


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United States v. Mason, No. 03-0259/AR


         •   Appellant had turned in a pair of Nomex gloves when he

             was reassigned to Fort Bragg.

         •   Nomex gloves are not unique, are issued to a majority

             of soldiers at Fort Riley, and are readily available

             in stores around the Fort Riley area.

         •   Nearly twenty percent of the black population has

             type-B blood.

         •   Appellant had been cleared of any suspicion relating

             to the CDC incident.

The military judge found that Appellant had not made even a

prima facie showing that the omissions were reckless or

intentional.    Such a determination is a finding of fact that is

binding on this Court unless it is shown to be clearly

erroneous.    United States v. Cravens, 56 M.J. 370, 375 (C.A.A.F.

2002); Allen, 53 M.J. at 408.

     We do not find the military judge’s determination

erroneous.    Moreover, for the reasons set forth below, we hold

that even if this information had been included in the

affidavit, none of it would have prevented a finding of probable

cause.   Accordingly, the military judge did not err in denying

Appellant’s motion to suppress the DNA evidence on the grounds

that material information was intentionally or recklessly

omitted from the affidavit based on which the magistrate made

her probable cause determination.


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United States v. Mason, No. 03-0259/AR


     First, the victim was nearsighted and was not wearing her

glasses at the time of the rape, which occurred in a dark room

by an assailant wearing a cap partially obscuring his face.     The

victim’s inability to identify Appellant in a photographic

line-up was consistent with the poor visibility at the time of

the rape, and therefore its inclusion on the affidavit would not

have extinguished probable cause.    These same circumstances

mitigate the victim’s inability to describe her rapist as having

a gold front tooth.   As to the latent fingerprint, the fact that

another individual at some point in time touched the victim’s

doorknob has little impact on the likelihood that Appellant

might have been in the victim’s bedroom.   Similarly, that

Appellant had turned in a pair of Nomex gloves, and that other

servicemembers own Nomex gloves, fails to invalidate the other

indicators of Appellant’s probable presence in the victim’s

room, including Mrs. P’s physical description of her assailant,

the proximity of Appellant’s residence to the crime scene, and

the match of Appellant’s blood type to that of the assailant.

As to the CDC incident, the details of the sighting and the lack

of any subsequent prosecution for the purse snatchings do not

nullify the value of the related information that was included,

which located both Appellant’s car and a man fitting Appellant’s

description at a site near the victim’s house at the same time

of day when the rape occurred, albeit almost two months later.


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United States v. Mason, No. 03-0259/AR


Finally, including the information that only a small percentage

of the black population has Appellant’s type B blood – a mere 19

percent – would likely have increased probable cause for the

search authorization, by diminishing the number of possible

suspects.   To this end, the information before the magistrate

also excluded other material information which would have

favored the Government, such as the fact that the CID designated

its pool of suspects based on proximity to the crime scene,

physical description, and behavior, and that the Government

considered four of these suspects before Appellant.

     To reiterate the gist of probable cause: “[P]robable cause

deals ‘with probabilities.   These are not technical; they are

the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians,

act[.]’”    Gates, 462 U.S. at 241 (quoting Brinegar v. United

States, 338 U.S. 160, 175 (1949))(emphasis added).    The

magistrate considered the following factors, in combination, to

find probable cause:

     •   The physical proximity of Appellant’s residence to the P

         residence.

     •   The match of Appellant’s blood type to that of the

         assailant.

     •   The Nomex glove found at the crime scene being similar to

         the gloves issued to Appellant.


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United States v. Mason, No. 03-0259/AR


      •   The similarity in times between the rape and the CDC

          incident.

      We acknowledge that agent Bruce should have brought the

information about the line-ups to the military magistrate’s

attention.    Nevertheless, we conclude that under the facts of

this case, the failure to do so did not invalidate the probable

cause determination.    Although this is a close case, we are

convinced that the cumulative impact of the information before

the magistrate was sufficient to yield probable cause that

Appellant’s blood did contain DNA evidence identifying him as

the rapist, and, for the reasons listed above, that the

inclusion of the excluded information would not have

extinguished this probable cause.

II.   The Government’s Question to its DNA Expert about Further
      DNA Testing Constituted Harmless Error which Failed to
      Prejudice Appellant

      During trial, defense counsel cross-examined the

Government’s DNA expert as follows:

      Q: Now, the NRC discusses that perhaps one way of
      quality assurance would be a second lab test, send the
      samples to a second lab, correct?

      A: Yes, sir.

      Q: Obviously, you don’t do that at USACIL.

      A: No, sir.

      Q: But would you agree that if that was done, that
      that might increase the confidence in the level of
      testing if there was [sic] similar results?


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United States v. Mason, No. 03-0259/AR


     A: I believe so, sir, yes.

     During the redirect examination of the Government’s DNA

expert, the following exchange took place:

     Q: . . . [A]re there samples remaining on the panties
     of Mrs. [P] and on the vaginal swabs from Mrs. [P]
     that could be used for additional testing[?]

     A: Yes.

     Q: Has there been a request by either party?

     Defense counsel objected to this question as outside the

scope of his cross-examination and as an improper attempt by the

Government to shift the burden of proof to the defense.    The

military judge requested a sidebar conference about the

objection, during which trial counsel argued: “There’s a clear

implication here that had the test been re-done under the new

standards, that there may have been a different result.”

Without explanation, the military judge overruled both

objections, and allowed redirect examination of the DNA expert

to continue, as follows:

     Q: Again, were there any requests by either party to
     re-test the samples?

     A: Not to my knowledge, no.

     The Army Court addressed the two objections raised by the

defense at trial.   The court first concluded that “defense

counsel’s cross-examination of [the DNA expert] opened the door

for trial counsel’s question about DNA retesting by raising the



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United States v. Mason, No. 03-0259/AR


issue of whether further testing of the available DNA material

from the rape could have exonerated appellant.”   Id. at 526-27.

The court further concluded that even if trial counsel’s

question and the expert’s response were determined to be error,

the military judge’s “instructions to the members immediately

before deliberations rendered any error harmless.”   Id. at 527.

     Appellant now asserts that the military judge erred in

overruling the defense objection when the Government asked the

DNA expert if the defense had requested that the evidence be

retested, contending that the question improperly sought to

shift the burden of proof to the defense.   In this regard,

Appellant claims the Government improperly suggested to the

members that if the accused were innocent, he should have proven

so by having the DNA evidence retested.   Appellant also asserts

that the court below erred by holding that the defense opened

the door for the Government’s question about DNA retesting by

raising the issue of whether further testing of the DNA material

could have exonerated him.

     Importantly, this is not a case in which the Government

sought to counter the defense challenge to the reliability of

the test by eliciting testimony as to why an additional test was

unnecessary, or to reinforce the 1 in 240 billion chance that

someone other was the source of the DNA found at the crime

scene.


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     We hold, first, that the military judge erred in permitting

trial counsel’s redirect examination of the DNA expert on the

issue of whether either party had requested a retest.   “The Due

Process Clause of the Fifth Amendment to the Constitution

requires the Government to prove the defendant’s guilt beyond a

reasonable doubt.”   United States v. Czekala, 42 M.J. 168, 170

(C.A.A.F. 1995).   Therefore, “[t]he burden of proof to establish

the guilt of the accused is upon the Government.”    Rule for

Courts-Martial 920(e)(5)(D).   In the case at bar, trial

counsel’s question to the DNA expert of whether either party had

requested a retest suggested that Appellant may have been

obligated to request a retest, and therefore obligated to prove

his own innocence.   In so doing, trial counsel improperly

implied that the burden of proof had shifted to Appellant, in

violation of due process.

      For this Court to affirm despite an error of

constitutional dimension, such as this one, the error must be

“harmless beyond a reasonable doubt.”    United States v. Bins, 43

M.J. 79, 86 (C.A.A.F. 1995)(quoting Chapman v. California, 386

U.S. 18, 24 (1967)).   The essential question is “what effect the

error had or reasonably may be taken to have had upon the

[court’s] decision.”   Kotteakos v. United States, 328 U.S. 750,

764 (1946).   For the following reasons, we further hold that the

military judge’s permission of trial counsel’s improper redirect


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examination of the DNA expert was harmless beyond a reasonable

doubt.   See United States v. Blocker, 32 M.J. 281, 284 (C.M.A.

1991)(noting that in resolving many questions courts may draw

reasonable inferences from the evidence of record).

     First, the evidentiary strength of the DNA evidence in this

case was overwhelming.   The expert witness interpreting the DNA

evidence established at trial that the odds of an individual

other than Appellant having been the source of the semen found

in Mrs. P were an extremely small 1 in 240 billion.   The defense

mounted a weak challenge to the DNA evidence, alleging through

cross-examination of the expert witness that the DNA test was

prone to error, and that a second test under new standards could

have increased the accuracy of the results.   The statistical

evidence of the likelihood that Appellant was the source of the

semen found in Mrs. P, and the failure of the defense to

discount this likelihood, rendered the military judge’s error in

permitting trial counsel’s improper question during redirect

examination of the DNA expert harmless beyond a reasonable

doubt.

         Moreover, after closing arguments, the military judge

instructed the members as follows:

          Lastly, the burden of proof to establish the
     guilt of the accused beyond a reasonable doubt is on
     the government. The burden never shifts to the
     accused to establish his innocence or to disprove



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     those facts which are necessary to establish each
     element of any particular offense.

(Emphasis added.)   See Article 51(c)(4), UCMJ, 10 U.S.C. §

851(c)(4) (2000)(requiring the military judge to instruct the

members “that the burden of proof to establish the guilt of the

accused beyond a reasonable doubt is upon the United States”);

United States v. Clay, 1 C.M.A. 74, 80, 1 C.M.R. 74, 80

(1951)(defining the importance of instructing the members on the

proper burden of proof).    These instructions followed trial

counsel’s own reiteration of the burden of proof during closing

argument: “This isn’t to say that the government is relieved of

the burden beyond a reasonable doubt to prove those elements.

The government doesn’t suggest that.   The government is burdened

by that burden of proof.”   As Appellant concedes, at no point

during trial other than in the redirect examination of the DNA

expert did the Government suggest the burden of proof might have

shifted.   Cf. Hayes v. State, 660 So.2d 257, 265-66 (Fla.

1995)(government improperly shifted burden of proof to accused

through redirect of crime lab expert on issue of blood stain

test raised by defense on cross-exam of expert plus related

comments made during government’s closing argument).   For these

additional reasons, the error was harmless beyond a reasonable

doubt.




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                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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