                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-30084
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     4:06-cr-00045-
                                            SEH-1
BILL TYRONE JAMES DE WATSON,
              Defendant-Appellant.         OPINION


      Appeal from the United States District Court
              for the District of Montana
       Sam E. Haddon, District Judge, Presiding

               Argued and Submitted
          May 16, 2014—Seattle, Washington

                  Filed July 10, 2015

 Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
         and Marsha S. Berzon, Circuit Judges.

              Opinion by Judge Kleinfeld
2                  UNITED STATES V. WATSON

                           SUMMARY*


                          Criminal Law

   The panel reversed the district court’s denial of Bill
Watson’s 2013 motion pursuant to the Innocence Protection
Act to order DNA testing of underwear, clothes, and vaginal
swabs in a case in which Watson was convicted in 2006 of
knowingly attempting to engage in a sexual act with a person
physically unable to communicate unwillingness.

     The panel held that Watson satisfied the preconditions
that he identify a theory of defense that would establish his
actual innocence, and that the identity of the perpetrator was
at issue in the trial.

    The panel held that new DNA tests that make previously-
useless DNA capable of identification amount to “newly
discovered DNA evidence” under the Act, even though the
underwear and semen are not, thereby rebutting the
presumption of the motion’s untimeliness.


                            COUNSEL

Elizabeth L. Griffing, Axilon Law Group, PLLC, Missoula,
Montana; Wendy Holton, Helena, Montana; Brendan
McQuillan, Montana Innocence Project, Missoula, Montana,
for Defendant-Appellant.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. WATSON                    3

Michael Cotter, United States Attorney, and Laura B. Weiss,
Assistant United States Attorney, Great Falls, Montana, for
Plaintiff-Appellee.

Colin M. Stephens (briefed), The Innocence Network,
Missoula, Montana, and Laura B. Weiss, Assistant United
States Attorney, Great Falls, Montana, for Amicus Curiae
The Innocence Network.


                        OPINION

KLEINFELD, Senior Circuit Judge:

    We address whether new DNA tests that make previously
useless DNA capable of identification amount to “newly
discovered DNA evidence” under the Innocence Protection
Act.

                           Facts

    Bill Watson was indicted for knowingly attempting to
engage in a sexual act with a person physically unable to
communicate unwillingness, as well as for assault of the
victim’s brother with a dangerous weapon. The case came to
federal court because the indictment charged that Watson, “an
Indian person,” committed the crimes “within the boundaries
of the Rocky Boy’s Indian Reservation, being Indian
Country.” He was convicted of the sex crime but not the
assault, and sentenced to 178 months of imprisonment to be
followed by five years of supervised release.

   The alleged sex crime and assault occurred at a party at
J.M.B.’s house. Her mother was away, and the teenaged
4               UNITED STATES V. WATSON

children and their friends had obtained two bottles of rum.
J.M.B., then 14 years old, got so drunk that a friend and her
brother were concerned about her choking on her vomit while
she slept, and gagged her to make her throw up. After she
vomited, they put her to bed in the master bedroom, her
mother’s room. Watson went to that bedroom.

    From there, the accounts diverged. J.M.B. was unable to
give an account of what happened. She testified that she did
not remember anything, from when she passed out to when
her brother woke her up afterwards. She did not testify to any
sexual contact with anyone.

    Watson testified that he went to that bedroom because he
needed to defecate. He did not want to use the downstairs
bathroom because he “didn’t want to smell up the bathroom
that everybody would go to, and I didn’t want to be laughed
at.” He had to pass through the master bedroom to get to the
upstairs bathroom. He testified that he never touched the
sleeping girl. When J.M.B.’s older brother asked him what
he was doing in the master bedroom, he said he was “coming
from the bathroom,” and the brother said “bull,” and accused
him of raping his sister.

    The older brother testified that he went to the room
periodically to check on his sister, and caught Watson with
his pants down, having sex with his unconscious sister. He
testified that Watson had “his penis in [his] sister’s vagina.”
Watson had his pants and underpants down, his sister’s pants
and underpants down, and was “pumping back and forth.”
Since J.M.B. was unconscious, Watson would have had to
have pulled down her pants and underpants. When the
brother walked in, Watson withdrew and was visibly
“aroused.” Watson said he was sorry.
                 UNITED STATES V. WATSON                         5

    The brother and Watson agree that they got in a brief fight
after the brother encountered Watson in the bedroom, and
then Watson went downstairs. Watson came back with a
hammer and started swinging it at the brother. The brother
told the police and the doctor the next morning that Watson
had hit him with the hammer, but testified at trial that the
hammer never touched him. The doctor who examined him
testified that “he had bruises.”

    Watson left the house after the fight. The brother and a
girl who was friends with the brother and with J.M.B. woke
J.M.B. up. The girl brought clothes not smelling of vomit,
including the mother’s underwear from the bathroom floor,
to put on J.M.B. J.M.B. testified that she had never worn
those underwear before, and her mother testified that the
underwear belonged to her.

    The medical examination of J.M.B. was inconclusive. In
the exhibits submitted with the motion for DNA testing, the
emergency room physician stated that J.M.B.’s hymen was
not torn. She noted “no evidence of injury or laceration to the
vaginal wall,” and that “[t]he hymen appears only slightly
patulous.1 It is not torn. It accommodates a narrow speculum
easily and the patient tolerates speculum examination really
quite well.” The medical report stated that there was no
injury to the vaginal walls. At trial, the physician testified
that she had observed a one millimeter abrasion, four small
skin tears, and bluish discoloration that might be bruising or
J.M.B.’s normal skin coloration of that skin, in the perineal
area.



 1
   GOULD MEDICAL DICTIONARY 1142 (3d ed. 1972) (defining “patulous”
as “expanded, open, loose”).
6                      UNITED STATES V. WATSON

    The older brother, who was the only eyewitness to the
alleged rape, was drunk himself, having consumed rum from
both bottles that night and three or four beers earlier in the
day. And he testified inconsistently with his prior statement
to the police that Watson had hit him with a hammer.

    An FBI DNA examiner testified that there was no semen
on the vaginal swabs. But she found semen in the underwear
J.M.B. was wearing. The FBI examiner testified that “I was
not able to determine the source of the semen in these
underwear, because of the extremely small amount of male
contribution that was identified by DNA analysis.” She
testified that she could not exclude any male from being the
source of the semen, because there was not enough of it to
test. All she could determine from the science then available
was that the DNA she could identify in the crotch of the
underwear came from two women, evidently J.M.B. and her
mother. That DNA was from one or two females, not any
male. The male substance was the semen, but there was not
enough of it to test, in 2006, for DNA.

    The jury convicted Watson of attempted sexual assault.
Seven years later, with the aid of the Innocence Project,
which describes itself as “a national litigation and public
policy organization dedicated to exonerating wrongfully
convicted individuals through DNA testing and reforming the
criminal justice system to prevent future injustice,”2 Watson
filed a motion in the district court to order DNA testing of the
underwear, clothes, and vaginal swabs. Watson and the
Innocence Project propose to pay for the testing themselves,
so the government will not be burdened with the expense.


    2
        http://www.innocenceproject.org/about-innocence-project.
                 UNITED STATES V. WATSON                         7

    An affidavit in support of the motion for DNA testing, by
Dr. Greg Hampikian, a biology professor at Boise State
University, says that DNA testing would now allow
identification not only of the contributor of the tiny amount
of semen in the underwear, but also of even tiny amounts of
DNA from skin cells of anyone who had physical contact
with the inside of J.M.B.’s vagina and even, from his hands,
contact with her clothing. Scientists call this “touch” DNA
testing, that is examining the DNA of someone who merely
touched something with his skin, testing not possible when
Watson was tried. Watson filed an affidavit saying “I am
actually innocent” of the sexual assault, as he testified at trial,
and argues that the DNA from the vagina, underwear, and
outer clothing will show the absence of any contribution from
him.

     The district court held a hearing, and denied the motion
as untimely. The reason for the ruling was that the statute
makes a motion presumptively untimely if made more than
three years after conviction. The presumption is overcome by
“newly discovered DNA evidence.” The underwear, vaginal
swabs and outer clothing were all available at the time of
trial, so the district court deemed them not to be “newly
discovered DNA evidence.” Watson appeals.

                            Analysis

   We review the question of statutory interpretation de
novo.3




   3
     United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008)
(“Questions of statutory interpretation are reviewed de novo.”).
8                       UNITED STATES V. WATSON

    In 2004, Congress passed the Innocence Protection Act.4
It opens the door to revisiting mistaken convictions, when the
new science of identifying people by their DNA left at a
crime scene may exonerate the wrongly convicted. Forensic
evidence can sometimes prove innocence as well as guilt. As
the Supreme Court explained in District Attorney’s Office for
the Third Judicial District v. Osborne, “DNA testing has an
unparalleled ability both to exonerate the wrongly convicted
and to identify the guilty. It has the potential to significantly
improve both the criminal justice system and police
investigative practices.”5

    The Innocence Protection Act commands testing. It says
the court “shall order DNA testing,”6 not “may” order testing,
in the covered circumstances.           The statute requires
satisfaction of ten criteria, of which three are at issue in this
case.

         1. Actual Innocence and Identity.

    The Act preconditions the mandatory testing requirement
on, among other things, (1) the applicant’s identification of a
theory that would establish his actual innocence,7 and (2) if
conviction followed a trial, a showing that the identity of the
perpetrator was at issue in the trial.8 The government argues

    4
        18 U.S.C. § 3600.
    5
        557 U.S. 52, 55 (2009).
    6
        18 U.S.C. § 3600(a).
    7
        Id. § 3600(a)(6)(B).
    8
        Id. § 3600(a)(7).
                  UNITED STATES V. WATSON                            9

that Watson did not identify a theory of defense that would
establish his actual innocence, and also that the identity of the
perpetrator was not at issue.9



  9
  The ten factors that must be met for a court to order post-conviction
DNA testing under 18 U.S.C. § 3600(a) are:

        “(1) The applicant asserts, under penalty of perjury, that
        the applicant is actually innocent of–

             (A) the Federal offense for which the applicant is
             under a sentence of imprisonment or death; or

             (B) another Federal or State offense, if–

                 (i) evidence of such offense was admitted
                 during a Federal death sentencing hearing and
                 exoneration of such offense would entitle the
                 applicant to a reduced sentence or new
                 sentencing hearing; and

                 (ii) in the case of a State offense–

                      (I) the applicant demonstrates that there is
                      no adequate remedy under State law to
                      permit DNA testing of the specified
                      evidence relating to the State offense; and

                      (II) to the extent available, the applicant
                      has exhausted all remedies available
                      under State law for requesting DNA
                      testing of specified evidence relating to
                      the State offense.

        (2) The specific evidence to be tested was secured in
        relation to the investigation or prosecution of the
        Federal or State offense referenced in the applicant’s
        assertion under paragraph (1).
10             UNITED STATES V. WATSON



     (3) The specific evidence to be tested–

         (A) was not previously subjected to DNA testing
         and the applicant did not–

              (i) knowingly and voluntarily waive the right
              to request DNA testing of that evidence in a
              court proceeding after the date of enactment of
              the Innocence Protection Act of 2004; or

              (ii) knowingly fail to request DNA testing of
              that evidence in a prior motion for
              postconviction DNA testing; or

         (B) was previously subjected to DNA testing and
         the applicant is requesting DNA testing using a
         new method or technology that is substantially
         more probative than the prior DNA testing.

     (4) The specific evidence to be tested is in the
     possession of the Government and has been subject to
     a chain of custody and retained under conditions
     sufficient to ensure that such evidence has not been
     substituted, contaminated, tampered with, replaced, or
     altered in any respect material to the proposed DNA
     testing.

     (5) The proposed DNA testing is reasonable in scope,
     uses scientifically sound methods, and is consistent
     with accepted forensic practices.

     (6) The applicant identifies a theory of defense that–

         (A) is not inconsistent with an affirmative defense
         presented at trial; and

         (B) would establish the actual innocence of the
         applicant of the Federal or State offense referenced
         in the applicant's assertion under paragraph (1).
          UNITED STATES V. WATSON                           11



(7) If the applicant was convicted following a trial, the
identity of the perpetrator was at issue in the trial.

(8) The proposed DNA testing of the specific evidence
may produce new material evidence that would–

    (A) support the theory of defense referenced in
    paragraph (6); and

    (B) raise a reasonable probability that the applicant
    did not commit the offense.

(9) The applicant certifies that the applicant will
provide a DNA sample for purposes of comparison.

(10) The motion is made in a timely fashion, subject to
the following conditions:

    (A) There shall be a rebuttable presumption of
    timeliness if the motion is made within 60 months
    of enactment of the Justice For All Act of 2004 or
    within 36 months of conviction, whichever comes
    later. Such presumption may be rebutted upon a
    showing–

         (i) that the applicant’s motion for a DNA test
         is based solely upon information used in a
         previously denied motion; or

         (ii) of clear and convincing evidence that the
         applicant’s filing is done solely to cause delay
         or harass.

    (B) There shall be a rebuttable presumption against
    timeliness for any motion not satisfying
    subparagraph (A) above. Such presumption may be
    rebutted upon the court’s finding–

         (i) that the applicant was or is incompetent
12              UNITED STATES V. WATSON

    Watson’s defense was that he did not commit the act
charged. He testified that he used the upstairs bathroom, but
he never touched J.M.B. on his way to or from the bathroom.
That would indeed be “actual innocence,” so the question is
whether DNA testing with post-trial technology would prove
it. Among the arguments presented to the jury was that one
of the other party-goers might have raped J.M.B. That
argument put the identity of the perpetrator at issue.

   The only solid evidence that there was a rape was
J.M.B.’s brother’s testimony. The medical evidence was


               and such incompetence substantially
               contributed to the delay in the applicant’s
               motion for a DNA test;

               (ii) the evidence to be tested is newly
               discovered DNA evidence;

               (iii) that the applicant’s motion is not based
               solely upon the applicant’s own assertion of
               innocence and, after considering all relevant
               facts and circumstances surrounding the
               motion, a denial would result in a manifest
               injustice; or

               (iv) upon good cause shown.

           (C) For purposes of this paragraph–

               (i) the term “incompetence” has the meaning
               as defined in section 4241 of title 18, United
               States Code;

               (ii) the term “manifest” means that which is
               unmistakable, clear, plain, or indisputable and
               requires that the opposite conclusion be
               clearly evident.”
                UNITED STATES V. WATSON                   13

inconclusive about whether J.M.B. had been raped and, if so,
who had done it. The small tears and abrasions in the
perineal area suggest that she was, but the intact hymen and
absence of any damage to the vagina suggest that she was not,
considering the brother’s description of how the rape was
perpetrated.

    The brother’s credibility was at issue because he was
drunk, and because he told inconsistent stories about whether
Watson had hit him with a hammer. The jury acquitted
Watson on the charge of assaulting the brother. It is hard to
see how they could acquit, unless they doubted the brother’s
ability or inclination to perceive, remember, and relate the
truth.

    Since the brother’s credibility was weak and the medical
evidence inconclusive, the semen in the underwear has to
have been important to the jury’s decision whether to believe
J.M.B. had been raped. There was not enough semen to
determine from the DNA testing possible at the time of trial
whose it was. But the semen proved that some male had had
sexual contact with a female who had worn the underwear.
That corroborated to a degree the brother’s eyewitness
testimony that Watson raped J.M.B., as well as the possible
implication from the medical testimony that J.M.B. could
have been raped.

    Now that post-trial DNA testing has made it possible to
test this previously too small sample, it could prove actual
innocence and mistaken identity in at least two ways. The
DNA test might show that one of the other males at the party,
not Watson, had raped J.M.B. Or, in conjunction with the
medical evidence suggesting an unruptured hymen, it might
suggest that no one had raped J.M.B., and some sexual
14               UNITED STATES V. WATSON

relationship of the mother rather than rape of her daughter
explained the semen.

    That is not to say Watson’s guilt would be impossible
after the DNA testing, even if none of the DNA found was
his. Impossibility is so rare that it cannot be a requirement
for “actual innocence.” But the probability might be so low
that actual innocence would be the only sensible explanation.
It would be hard to reconcile DNA proved to be someone’s
other than Watson’s, and no semen or even “touch” DNA
from Watson, with Watson’s having raped J.M.B. The only
sensible explanations consistent with the absence of Watson’s
DNA would be that someone else, or no one, had raped
J.M.B.

    Touch DNA could also be persuasive evidence of
Watson’s innocence. The evidence submitted on the motion
supports that identifiable DNA could now be obtained from
the vaginal swabs and even from J.M.B.’s shorts, showing
who pulled them off. The prosecution’s theory was that
Watson pulled J.M.B.’s shorts off her to rape her. J.M.B.’s
brother testified that when he put J.M.B. to bed she was fully
clothed. Touch DNA only became available after Watson’s
conviction. If touch DNA testing is as good as the evidence
before us suggests, it could also prove Watson’s innocence,
if he is innocent.

    Our sister circuits have, like us, looked at the facts of the
particular case to evaluate whether post-conviction DNA
testing could, in the particular circumstances, establish actual
innocence or mistaken identity. The Fifth Circuit in United
States v. Fasano reversed a denial of testing, where
eyewitness testimony established guilt, but a negative DNA
test would undermine the credibility of four eyewitness
                    UNITED STATES V. WATSON                   15

identifications.10 The Tenth Circuit in United States v.
Jordan upheld a denial of testing, where the DNA testing
would not be exculpatory, since the applicant admitted
handling the bloody knife.11 Likewise, in United States v.
Pitera, the Second Circuit upheld a denial because the
absence of Pitera’s DNA on the gun and other items would
not establish that he did not commit the murder together with
the shooter.12 By contrast, in the case before us, if, as her
brother testified, Watson had pulled down J.M.B.’s shorts and
was having sexual intercourse with her, as corroborated by
the semen found in the underpants put on her afterward, the
absence of his DNA and the presence of another male’s DNA
on the shorts and the vaginal swabs, and in the semen, would
indeed be inconsistent with his guilt.

    Neither innocence nor guilt can be proved with scientific
certainty, regardless of whether the proof is scientific, and the
significance of evidence necessarily varies from case to case.
Where the presence or absence of the movant’s DNA would
not show actual innocence, there is no reason to test for it.
Where it would, the statute compels testing so long as the
movant complies with the Act’s other requirements.

      2. Timeliness.

    The government’s strongest argument against testing the
semen for identifiable DNA is that Watson’s request is
untimely. He was convicted in 2006, and made his motion,


 10
      577 F.3d 572, 574, 578 (5th Cir. 2009).
 11
      594 F.3d 1265, 1268–69 (10th Cir. 2010).
 12
      675 F.3d 122, 129 (2d Cir. 2012).
16                UNITED STATES V. WATSON

after getting legal assistance from the Innocence Project, in
2013. The Act enabling convicts to get post-conviction DNA
testing makes motions presumptively untimely five years
after its 2004 enactment or three years from conviction.13




  13
    “The motion is made in a timely fashion, subject to the following
conditions:

        (A) There shall be a rebuttable presumption of
        timeliness if the motion is made within 60 months of
        enactment of the Justice For All Act of 2004 or within
        36 months of conviction, whichever comes later. Such
        presumption may be rebutted upon a showing–

            (i) that the applicant’s motion for a DNA test is
            based solely upon information used in a previously
            denied motion; or

            (ii) of clear and convincing evidence that the
            applicant’s filing is done solely to cause delay or
            harass.

        (B) There shall be a rebuttable presumption against
        timeliness for any motion not satisfying subparagraph
        (A) above. Such presumption may be rebutted upon the
        court’s finding–

            (i) that the applicant was or is incompetent and
            such incompetence substantially contributed to the
            delay in the applicant’s motion for a DNA test;

            (ii) the evidence to be tested is newly discovered
            DNA evidence;

            (iii) that the applicant’s motion is not based solely
            upon the applicant’s own assertion of innocence
            and, after considering all relevant facts and
                     UNITED STATES V. WATSON                    17

Watson’s motion was, as he concedes, presumptively too late.

    Watson’s timeliness argument depends on the statutory
provision that the presumption of untimeliness is rebutted, if
“the evidence to be tested is newly discovered DNA
evidence.”14 Although the district judge articulated a finding
of untimeliness, that finding is actually a legal conclusion.
The district court determined that the untestable DNA was
not “newly discovered DNA evidence” because the
underwear and other clothing were themselves not newly
discovered. It is uncontested that, as the government’s expert
witness testified, the semen could not then be tested for
DNA evidence. Watson’s motion establishes, without
contradiction, that scientific developments since the trial have
made it possible now, but not then, to get an identification
from the tiny quantity of DNA. So our question is one of
law—does a change in the scientific evidence potentially
available concerning certain objects constitute “newly
discovered evidence” when the objects to be investigated are
not newly discovered?

    We conclude that the DNA is “newly discovered DNA
evidence” even though the underwear and semen are not. A
specimen of DNA not usable to identify anyone is not
evidence that anyone in particular deposited it. Semen proves
a deposit from the male half of the population, but not from


               circumstances surrounding the motion, a denial
               would result in a manifest injustice; or

               (iv) upon good cause shown.”

18 U.S.C. § 3600(a)(10).
 14
      Id. § 3600(a)(10)(B)(ii).
18                UNITED STATES V. WATSON

a particular male. Unlike semen, DNA, if capable of being
examined, would be evidence of which male had sexual
contact with a wearer of the underwear. The proposition for
which identifiable DNA would be evidence is an entirely
different proposition from that for which the underwear with
semen would be evidence. The issue critical to Watson’s
guilt or innocence is not the semen, but whose it was. Where
only a single male could be the perpetrator, semen might be
all the evidence needed, but where, as here, the semen could
have come from other males, innocently if by way of J.M.B.’s
mother, or criminally from some other male at the party, a
DNA test identifying which male it came from is the evidence
that makes or breaks the case.

    The word “discover” connotes obtaining knowledge of a
thing, not just tripping over it.15 It would be an anomalous
use of the word “discover,” as in “newly discovered DNA
evidence,” to apply it to something possessed without the
capability of knowing what it is. Doubtless many people
possessed radium before Marie Curie discovered its
properties, and uranium was used to make yellow glass for
centuries before anyone discovered other uses for it. We
would not say that a seventeenth century Czech glass blower
had discovered radioactive substances, even though they were
piled in the corner of his shop. It was only subsequent to
1892 that viruses small enough to pass through filters were
discovered to be the causes of many diseases of plants,


 15
   See THE AMERICAN HERITAGE DICTIONARY 403 (2d college ed. 1985)
(defining “discover” as “[t]o obtain knowledge of through observation,
search, or study”); see also 4 THE OXFORD ENGLISH DICTIONARY 752 (2d
ed. 1989) (defining “discover” as “[t]o obtain sight or knowledge of
(something previously unknown) for the first time; to come to the
knowledge of; to find out”).
                        UNITED STATES V. WATSON                          19

animals and people, though people had possessed the
diseased leaves, cattle and so forth since time immemorial.16
A dead cow would not, before that, have been discoverable
evidence of foot-and-mouth disease, even if one had its
carcass in a laboratory.17 Wigmore defined “evidence” as a
“knowable” fact “on which the determination of the tribunal
is to be asked.”18 Here, the “knowable” fact, knowable now
but not at trial, is whose DNA was in the underpants on
J.M.B.’s person and clothing. The fact that matters, whose
semen it was, did not become knowable, so it could not be
evidence, until post-trial scientific advances made its
discovery possible.

    Congress provided for scientific advances in one of the
preconditions for mandatory DNA testing. Either the
evidence had not previously been subjected to DNA testing
(as here, because it was too small a sample), or it had been,
but a new method was “substantially more probative.”19 This
phrasing provides for mandatory testing even where the DNA
has been tested before. The government argues that because
the “new method” phrase is used in requirement 3 of the list
of 10 requirements for DNA testing, but not in requirement


  16
       GARY N. CALKINS, THE SMALLEST LIVING THINGS 14 (1932).
  17
       See id. at 15.
 18
    See 1 WIGMORE ON EVIDENCE § 1 (Tillers rev. 1983) (“Any knowable
fact or group of facts, not a legal or a logical principle, considered with a
view to its being offered before a legal tribunal for the purpose of
producing a persuasion, positive or negative, on the part of the tribunal, as
to the truth of a proposition, not of law or of logic, on which the
determination of the tribunal is to be asked.”).
  19
       18 U.S.C. § 3600(a)(3)(B).
20                   UNITED STATES V. WATSON

10, the timeliness and “newly discovered DNA evidence” or
“good cause shown” language, we should infer the negative
pregnant that new methods will not suffice to rebut
untimeliness. We cannot see what purpose Congress might
have had for so providing. The statute does not say that. The
government proposes to read into requirement 10’s silence
about new methods an implied negative pregnant. Some
statements imply a negative pregnant, some do not.
“Sometimes there is no negative pregnant: ‘get milk, bread,
peanut butter and eggs at the grocery’ probably does not
mean ‘do not get ice cream.’”20

    Our reading of “newly discovered DNA evidence” does
pose a risk of subsequent testing on old DNA from many
closed cases. Congress created the statutory remedy, though,
expressly for individuals already under sentence of
imprisonment or death pursuant to a conviction,21 thereby
sacrificing finality to accuracy of a conviction. Were the
statute not an intentional Congressional rejection of finality
where innocence could be proved by DNA, Congress would
not have provided a remedy that benefits no one but persons
already convicted.

    Another obvious risk created by the statute is the expense
of a flood of post-conviction DNA testing requests. Congress
addressed that as well, by requiring that the applicant, the


  20
     Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.
1992); see also BLACK’S LAW DICTIONARY 1132 (9th ed. 2009) (defining
a “negative pregnant” as “[a] denial implying its affirmative opposite by
seeming to deny only a qualification of the allegation and not the
allegation itself”).
 21
       18 U.S.C. § 3600(a).
                     UNITED STATES V. WATSON                 21

convicted criminal, pay for the test, except when indigent.22
There are federal grants to the states for post-conviction DNA
testing.23 As for the indigent applicants, they run a very great
risk in requesting a DNA test if they are guilty, so absence of
a financial burden does not mean they are undeterred. If the
applicant turns out to be the source of the DNA tested, the
government may apply for a contempt of court penalty, the
Bureau of Prisons may deny good time, the Parole
Commission may deny parole, and inculpatory DNA findings
may be forwarded to appropriate state officials.24 Those
convicted in state court may have even more to lose from
asking for DNA tests when they are guilty than do federal
defendants, because state systems typically offer more good
time and parole. Watson’s lawyers, the Innocence Project,
propose to pay for his DNA test, but even so, he has a lot to
lose if his DNA is found in the semen in J.M.B.’s underwear.
He risks loss of good time and contempt penalties.

    We conclude that Watson successfully rebutted the
rebuttable presumption of untimeliness. The DNA evidence
must be deemed “newly discovered,” since it was not
discoverable before. Because we accept Watson’s “newly
discovered DNA evidence” argument under subsection
(B)(ii), we do not reach his “upon good cause shown”
argument under subsection (B)(iv). Since we do not reach the
“good cause” argument, we do not reach the government’s
counterargument based upon the delay between the post-trial



 22
      Id. § 3600(c)(3).
 23
      42 U.S.C. § 14136(a).
 24
      18 U.S.C. § 3600(f)(2)(B).
22                   UNITED STATES V. WATSON

scientific advances and Watson’s motion, or Watson’s
rebuttal arguing that he was appropriately diligent.

                              Conclusion

    No tradition is more firmly established in our system of
law than assuring to the greatest extent that its inevitable
errors are made in favor of the guilty rather than against the
innocent.25 Our legal tradition has always followed
Blackstone’s principle that “it is better that ten guilty persons
escape than that one innocent suffer.”26 The moral force of
our criminal law requires this allocation of the risk of error,
both with respect to standard of proof and to scientific testing
of newly discovered evidence critical to guilt. “It is critical
that the moral force of the criminal law not be diluted by a
standard of proof [or, we suggest, a rejection of scientific
testing] that leaves people in doubt whether innocent men are
being condemned.”27 Not all share our revulsion at
punishment of the innocent, of course. But Americans have
always been revolted by the notion that it is better that the
innocent suffer than that some of the guilty go free.

    Consistent with our tradition, Congress has created a
device to end the suffering of the innocent, where their
innocence is scientifically demonstrable by DNA evidence,
even after their convictions have become final. The most
hallowed principle of our criminal law, protecting the


     25
     See In re Winship, 397 U.S. 358, 368–72 (1970) (Harlan, J.,
concurring).
 26
      WILLIAM BLACKSTONE, 4 COMMENTARIES *358.
 27
      In re Winship, 397 U.S. at 364.
               UNITED STATES V. WATSON                  23

innocent, requires us to eschew a crabbed, restricted
construction of the statute. Watson moved in timely fashion
for previously unperformed DNA testing, based on newly
discovered evidence—the results of DNA testing not possible
at the time of trial—that could well prove his actual
innocence and mistaken identity. His motion should have
been granted.

   REVERSED AND REMANDED.
