                       UNITED STATES, Appellee

                                    v.

                  Daniel L. ELLIS, Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 09-0382

                         Crim. App. No. 37113

       United States Court of Appeals for the Armed Forces

                       Argued November 9, 2009

                      Decided February 23, 2010

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

                                 Counsel


For Appellant: Major Michael A. Burnat (argued); Major Shannon
A. Bennett (on brief).

For Appellee: Major Coretta E. Gray (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).

Military Judge:   Gregory Gaudette


       This opinion is subject to revision before final publication.
United States v. Ellis, No. 09-0382/AF

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Daniel L. Ellis entered guilty pleas to a

number of offenses involving his inappropriate conduct with a

young girl and an individual he believed to be a young girl.1     A

military judge accepted Ellis’s pleas and sentenced him to

eleven years of confinement, forfeiture of all pay and

allowances, reduction to the grade of E-1, and a dishonorable

discharge.   The convening authority approved the sentence and

the United States Air Force Court of Criminal Appeals affirmed

the findings and the sentence.   United States v. Ellis, No. ACM

37113, 2008 CCA LEXIS 507, 2008 WL 5192458 (A.F. Ct. Crim. App.

Dec. 12, 2008) (unpublished).

     “In a sentencing hearing, an accused’s potential for

rehabilitation is a proper subject of testimony by qualified

experts.”    United States v. Stinson, 34 M.J. 233, 238 (C.M.A.

1992) (citing Rule for Courts-Martial (R.C.M.) 1001(b)(5)).

          Mil.R.Evid. 702-705 and 403 operate to establish
     a simple four-part test for admissibility of expert
     testimony: (1) Was the witness “qualified to testify
     as an expert”? (2) Was the testimony “within the
     limits of [the expert’s] expertise”? (3) Was the
     “expert opinion based on a sufficient factual basis to
     make it relevant”?, and (4) “Does the danger of unfair
     prejudice created by the testimony outweigh its
     probative value?” United States v. Stinson, 34 M.J.
     233, 238 (C.M.A. 1992); United States v. Neeley, 25

1
  Ellis was convicted of two specifications of indecent acts on
divers occasions with a child, one specification of possession
of child pornography, one specification of adultery, four
specifications of communicating indecent language to a child,
one specification of carnal knowledge, and two specifications of
attempted communication of indecent language to a child.
                                  2
United States v. Ellis, No. 09-0382/AF

     M.J. 105, 107 (C.M.A. 1987), cert. denied, 484 U.S.
     1011 (1988).

United States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992).

      We granted review in this case to determine whether the

military judge abused his discretion by allowing the

Government’s expert to testify as to Ellis’s potential for

rehabilitation, specifically his risk of recidivism.2   We hold

that the military judge did not abuse his discretion in allowing

the expert opinion testimony and therefore affirm the Air Force

Court of Criminal Appeals.

                             Background

    Ellis was stationed at Elmendorf Air Force Base near

Anchorage, Alaska.   In December 2004 he met VC, then a thirteen-

year-old female seventh grader, in an Internet chat room

operated by Yahoo.   During the course of their chats, VC gave

Ellis her name and age and told him that she lived in Anchorage.

Ellis continued these chats with VC almost every other day,

which ultimately led to a meeting with VC and her mother at an

Anchorage restaurant.   During that meeting, VC’s mother told

Ellis that VC was only thirteen years old.

     About two weeks later, Ellis went to VC’s home and again

visited with VC and her mother.   VC’s mother left the house and

Ellis and VC participated in what VC described as a “make out

session.”   At some point later, Ellis met VC’s mother at her

2
  United States v. Ellis, 68 M.J. 145 (C.A.A.F. 2009) (order
granting review).
                                  3
United States v. Ellis, No. 09-0382/AF

house and they engaged in sexual intercourse.      During this

period Ellis continued to have online chats with VC about the

sexual things he would like to do to her.      He also continued his

visits to her house and during these visits Ellis began to have

intimate sexual contact with VC, which ultimately led to sexual

intercourse.   On one occasion Ellis took VC to the parking lot

of a local elementary school, where he digitally penetrated her

vagina while sitting in his car.

     In October 2005, Ellis was transferred to Cannon Air Force

Base in New Mexico, but he continued his Internet chats and

sexual banter with VC.   The sexual chat banter was eventually

discovered and a search warrant obtained to search his home and

personal computer in New Mexico.       An analysis of the computer

revealed a number of files containing child and adult

pornography as well as chat logs between Ellis and VC and chat

logs between Ellis and someone he believed to be a fourteen-

year-old female named “Mandy.”   Actually “Mandy” was an

Immigration and Customs Enforcement (ICE) officer conducting an

Internet child pornography investigation who was posing as a

child.   The chats with the ICE officer contained indecent sexual

banter and took place one month after the initial charges had

been preferred against Ellis in the instant case.

     Ellis entered into a pretrial agreement with the convening

authority in return for his guilty pleas.      During the

presentencing phase of Ellis’s court-martial, the prosecution

                                   4
United States v. Ellis, No. 09-0382/AF

called an expert, Dr. Timothy Faye Branaman, to testify as to

Ellis’s risk for recidivism.    Following a series of questions

concerning Dr. Branaman’s qualifications and experience, and

after his curriculum vitae was admitted into evidence, the trial

counsel moved for his recognition as an expert in forensic

psychology with a specialization in sexual offender assessments.

The defense did not object to Dr. Branaman’s qualifications or

his recognition as an expert.

     Dr. Branaman testified that the methodology he used in

performing risk assessments of sexual offenders was an actuarial

approach (statistical degree of probability) using an instrument

entitled Static 99.3   The Static 99 was developed from

statistical studies of men released from incarceration who had

been convicted of sexual offenses.    The instrument grouped the

risk factors of these men and compared those factors with the

men’s recidivism rates.    Dr. Branaman testified that the

instrument was found to have a seventy percent rate of

predictive validity and was well accepted within the scientific

and medical communities.   Static 99 evaluates ten separate risk

factors and assigns points depending on an individual’s history




3
  Static 99 is an instrument that was developed and published in
1999 and is widely utilized in this field. See United States v.
McIlrath, 512 F.3d 421 (7th Cir. 2008), and cases cited therein.
The term “static” refers to the historical factors the
assessment evaluates.
                                  5
United States v. Ellis, No. 09-0382/AF

as to each factor.4   Dr. Branaman testified that there is a

possible total of twelve points on the Static 99:   zero and one

reflect a low risk of recidivism; two and three reflect a

moderate low risk; four and five reflect a moderate high risk;

and six and above reflect a high risk.

     Prior to rendering his opinion, Dr. Branaman testified that

he had reviewed the charges and specifications against Ellis;

reviewed the stipulation of fact; reviewed the forensic analysis

of items seized from Ellis’s computer and the chat logs;

listened to the guilty plea inquiry by the military judge; and

reviewed the rehabilitation options available at Cannon Air

Force Base with confinement officials.   Dr. Branaman did not

conduct a personal interview of Ellis.

     When the prosecution solicited Dr. Branaman’s opinion as to

Ellis’s risk of recidivism, Ellis’s defense counsel initially

objected on the grounds that Dr. Branaman did not have a

sufficient factual basis to make a relevant opinion.   Following

further questioning of Dr. Branaman by the military judge and

counsel, the defense counsel also objected on the grounds that

“the methodology from which [Dr. Branaman] is basing his opinion


4
  The ten risk factors in the Static 99 are: age of offender;
stability of relationships; whether most recent conviction is
for non-sexual violence; any prior conviction for non-sexual
violence; number of sexual offense convictions or charges prior
to most recent offense; has individual been sentenced on more
than four prior occasions; convictions for non-contact sex
offenses; any unrelated victims; any stranger victims; and any
male victims.
                                 6
United States v. Ellis, No. 09-0382/AF

as conducted, does not bear sufficient reliability to be

admissible in this case.”   When asked by the military judge why

it was not reliable, defense counsel stated it was because the

test had a seventy to seventy-five percent accuracy rate and

there were cases where the addition of dynamic variables skewed

the accuracy of the Static 99 assessment.   Finally, the defense

counsel objected on the grounds that risk of recidivism was not

proper testimony as to rehabilitation potential.

      Following this discussion, the military judge stated that

he would allow trial counsel to continue to lay a foundation for

Dr. Branaman’s expert opinion.   Trial counsel immediately asked

Dr. Branaman what his opinion was as to Ellis’s risk of

recidivism.   Dr. Branaman responded that Ellis fell into the

moderate high category for risk of recidivism, which reflected a

thirty-eight percent chance of recidivism over a fifteen-year

window of time.   Dr. Branaman then went on to explain how he

scored each of the ten factors for Ellis, which resulted in a

total score of four points.   There was no further ruling on the

admissibility of Dr. Branaman’s expert opinion on Ellis’s risk

of recidivism, nor was there a request for a ruling from either

party.5




5
  The defense did object to two further questions for expert
testimony from Dr. Branaman as to Ellis’s treatment amenability
and the potential victim impact on VC. The military judge
sustained both of those objections.
                                 7
United States v. Ellis, No. 09-0382/AF

                            Discussion

     This Court reviews a military judge’s decision to admit or

exclude expert testimony over a defense objection for an abuse

of discretion.   United States v. Billings, 61 M.J. 163, 166

(C.A.A.F. 2005).   A military judge abuses his discretion when:

(1) the findings of fact upon which he predicates his ruling are

not supported by the evidence of record; (2) if incorrect legal

principles were used; or (3) if his application of the correct

legal principles to the facts is clearly unreasonable.     United

States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008).    “‘When

judicial action is taken in a discretionary matter, such action

can not be set aside by a reviewing court unless it has a

definite and firm conviction that the court below committed a

clear error of judgment in the conclusion it reached upon

weighing of the relevant factors.’”   United States v. Sanchez,

65 M.J. 145, 148 (C.A.A.F. 2007) (quoting United States v.

Houser, 36 M.J. 392, 397 (C.M.A. 1993)).

     Ellis argues that Dr. Branaman’s limited record review did

not provide him with a sufficient factual basis for his expert

opinion as to his (Ellis’s) risk of recidivism.    Ellis

recognizes that a personal interview is not necessary in order

to give an opinion on the risk of recidivism.6    He argues,

however, that in the absence of a personal interview, Dr.

6
  See Stinson, 34 M.J. at 239 (citing Barefoot v. Estelle, 463
U.S. 880, 903-04 (1983); United States v. Hammond, 17 M.J. 218
(C.M.A. 1984)).
                                 8
United States v. Ellis, No. 09-0382/AF

Branaman’s preparation was insufficient as he did not review

Ellis’s personnel, mental health, and medical records, nor did

he interview the victims.   He also argues that in using the

Static 99 appraisal, Dr. Branaman improperly relied on the

number of charges on the charge sheet and therefore the

probative value of his testimony was marginal and substantially

outweighed by the danger of unfair prejudice under Military Rule

of Evidence (M.R.E.) 403.   Since the military judge did not

perform a M.R.E. 403 balancing test on the record, Ellis argues

that his ruling is not entitled to any deference.

     The Government responds that Dr. Branaman’s review of the

records and his use of the Static 99 appraisal provided a

sufficient factual basis for his expert opinion.    As to Ellis’s

allegation that Dr. Branaman’s appraisal improperly relied on

the number of the charges in the charge sheet, the Government

notes that there was no evidence that the Static 99 appraisal

was unreliable and, in any event, defense counsel effectively

cross-examined Dr. Branaman on the limitations of the Static 99

appraisal when used with discretionary drafting of charges.

Expert Opinion Testimony on Risk of Recidivism

     We initially note that Ellis does not challenge whether Dr.

Branaman was qualified as an expert nor does he challenge that

the testimony was within the limits of Dr. Branaman’s expertise.

He bases his challenge on the third Stinson/Banks factor,

arguing that Dr. Branaman did not have a sufficient factual

                                 9
United States v. Ellis, No. 09-0382/AF

basis to provide a relevant expert opinion on his risk of

recidivism.

     R.C.M. 1001(b)(5)(A) allows trial counsel to present

opinion evidence as to an accused’s potential for

rehabilitation.   R.C.M. 1001(b)(5) goes on to provide, in part:

     (B) Foundation for opinion. The witness or deponent
     providing opinion evidence regarding the accused’s
     rehabilitative potential must possess sufficient
     information and knowledge about the accused to offer a
     rationally-based opinion that is helpful to the
     sentencing authority. Relevant information and
     knowledge include, but are not limited to, information
     and knowledge about the accused’s character,
     performance of duty, moral fiber, determination to be
     rehabilitated, and nature and severity of the offense
     or offenses.

     (C) Bases for opinion. An opinion regarding the
     accused’s rehabilitative potential must be based upon
     relevant information and knowledge possessed by the
     witness or deponent, and must relate to the accused’s
     personal circumstances. . . .

     Ellis does not assert that the material that Dr. Branaman

did review was neither relevant nor related to Ellis’s personal

circumstances.    Rather, he argues that Dr. Branaman should have

reviewed additional materials.   The issue here is not whether

Dr. Branaman reviewed every record, it is whether the review he

undertook provided him with “sufficient” information to offer a

rationally based opinion that would be helpful to the sentencing

authority.

     There can be no hard and fast rule as to what constitutes

“sufficient information and knowledge about the accused”

necessary for an expert’s opinion as to an accused’s

                                 10
United States v. Ellis, No. 09-0382/AF

rehabilitation potential.   In our prior decisions involving the

basis for an expert’s opinion on an accused’s potential for

rehabilitation, we have necessarily analyzed the sufficiency of

the facts and data on a case-by-case basis.   United States v.

Gunter, 29 M.J. 140, 141 (C.M.A. 1989) (reviewing data from a

drug rehabilitation file was sufficient basis); Stinson, 34 M.J.

at 235 (reviewing accused confession; observing the guilty plea

inquiry; reviewing the Office of Special Investigation report

and statements by the victim; reviewing the accused’s mental

health records; and interviewing the victim was sufficient

basis); United States v. Scott, 51 M.J. 326, 328 (C.A.A.F. 1999)

(reviewing an accused’s unsworn statement and two mental health

evaluations was sufficient basis); United States v. McElhaney,

54 M.J. 120, 134 (C.A.A.F. 2000) (interviewing the victim and

observations in court were not sufficient basis, also relying on

fact that expert was a child psychiatrist rather than a forensic

psychiatrist).

     Dr. Branaman testified that the Static 99 appraisal was

specifically designed to do a risk assessment based upon a

review of records.   In addition to the Static 99 assessment, Dr.

Branaman reviewed the charges and specifications, the extensive

stipulation of fact,7 the forensic analysis of the hard drive and


7
  The stipulation of fact in this case comprises seventeen pages
thoroughly detailing the underlying circumstances of the
offenses to which Ellis pleaded guilty, including: a
chronological record of how Ellis developed his relationship
                                11
United States v. Ellis, No. 09-0382/AF

the listing of the images identified there, the chat logs, he

listened to the guilty plea inquiry, and reviewed the

rehabilitation options at Cannon Air Force Base.   We conclude

that Dr. Branaman’s review provided a sufficient basis for his

opinion and the military judge did not abuse his discretion in

allowing the testimony.

M.R.E. 403

     Ellis goes on to argue that the criteria of the fifth

factor in the Static 99 appraisal, which is based on the number

of the accused’s prior charges and convictions for sexual

offenses, resulted in Dr. Branaman over-relying on the mere

number of charged offenses.   As a result of this over-reliance,

Ellis argues that the probative value of the expert testimony

was substantially outweighed by the danger of unfair prejudice

under M.R.E. 403.

     Prior to this situation, Ellis had not been charged or

convicted of any sexual offenses.    In the instant case Ellis was

charged with eight specifications under Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006):    two

specifications of indecent acts with VC; one specification of

possession of child pornography; one specification of adultery;

and four specifications of indecent language with VC.   In an



with VC; excerpts from the chats between Ellis and VC and Ellis
and “Mandy”; and descriptions of eight video files found on
Ellis’s computers that contained images of children engaged in
sexually explicit conduct.
                                12
United States v. Ellis, No. 09-0382/AF

additional charge, he was charged under Article 120, UCMJ, 10

U.S.C. § 920 (2006), with carnal knowledge with VC.    In a second

additional charge he was charged with two specifications of

attempted indecent language with “Mandy” in violation of Article

134, UCMJ.

     Factor five of the Static 99 appraisal takes into account

the sexual offense charges and convictions prior to the “index”

offense.    Dr. Branaman explained that the “index” offense is the

last offense committed by the accused, which in this case was

the most recent attempted indecent language charge with “Mandy.”

According to Dr. Branaman, all of the other charged offenses

became “prior” charges for Static 99 purposes.   Under the Static

99 criteria for factor five, these “prior” charges resulted in

Ellis receiving three points.   At the time of the appraisal,

Ellis had not been convicted of any sexual offenses and he was

therefore given zero points for prior convictions.    This

resulted in a score of three points for factor five.   Ellis also

received an additional point in factor eight because the victims

were not related to him.   Ellis’s total score under the Static

99 was four points, which placed him in the moderate high risk

category.

     Ellis argues that if he had been charged with one indecent

language offense on divers occasions with VC, the number of

prior charges against him would have been reduced by three,

which would have reduced his score for factor five, resulting in

                                 13
United States v. Ellis, No. 09-0382/AF

a lower total score and a lower risk category.   Because of the

methodology of factor five, Ellis argues that since “the

principal basis for Dr. Branaman’s expert opinion relied so

heavily on the mere form and number of charged offenses . . .

his testimony did not aid the military judge in determining

appellant’s rehabilitative potential.”   As a result, Ellis

argues that the probative value of Dr. Branaman’s expert

testimony based on the appraisal is substantially outweighed by

the danger of unfair prejudice, citing M.R.E. 403.

     We initially note that the four indecent language

specifications involving VC all involved different conduct and

occurrences.   While Ellis did object at trial as to the

reliability of Dr. Branaman’s methodology, that objection was

limited to the seventy to seventy-five percent accuracy rate of

the assessment and the assertion that the addition of dynamic

variables could skew the accuracy of the assessment.   Ellis did

not object to the methodology of factor five, nor did he request

a Daubert/Houser inquiry as to the validity of the Static 99

instrument.8   At oral argument before this court Appellant’s

counsel clarified that Ellis was not challenging the validity of

the Static 99 appraisal.   Without such a challenge it is


8
  See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993); United States v. Houser, 36 M.J. 392 (C.M.A. 1993),
cert. denied, 510 U.S. 864 (1993). Although Static 99 is widely
used, the issue as to whether it would meet the Daubert standard
is the subject of ongoing judicial debate. See Judge Posner’s
critical discussion in McIlrath, 512 F.3d at 425.
                                14
United States v. Ellis, No. 09-0382/AF

difficult for Ellis to argue that an expert opinion based on the

Static 99 appraisal should not have been admitted under M.R.E.

403 because the methodology under factor five may have been

flawed.

     Once the Static 99 appraisal was accepted by the military

judge, the challenges that Ellis had as to methodology went to

weight rather than admissibility.    In Barefoot, 463 U.S. at 901,

the Supreme Court discussed the usefulness of psychiatric

predictions of future dangerousness given the number of studies

that indicated those predictions were often inaccurate.   In

allowing the testimony the Court stated that it was unconvinced

“that the adversary process cannot be trusted to sort out the

reliable from the unreliable evidence, particularly when the

convicted felon has the opportunity to present his own side of

the case.”   Id.

     Both the defense counsel and the military judge thoroughly

questioned Dr. Branaman concerning the methodology of the Static

99 appraisal.   Ellis’s defense counsel specifically cross-

examined Dr. Branaman about the effect of the Government’s

charging decisions in relation to factor five of the Static 99

appraisal.   As a result of this cross-examination, Dr. Branaman

acknowledged that had the indecent language charges involving VC

been consolidated, Ellis may have been placed in a lower risk

category.



                                15
United States v. Ellis, No. 09-0382/AF

     The military judge was therefore aware of the issue of

potential Government influence as a result of their charging

decisions on factor five of the Static 99 appraisal, and, as the

trier of fact in this case, is presumed to have given it

appropriate weight.   United States v. Robbins, 52 M.J. 455, 457

(C.A.A.F. 2000) (A military judge is presumed to know the law

and apply it correctly, is presumed capable of filtering out

inadmissible evidence, and is presumed not to have relied on

such evidence on the question of guilty or innocence.).

                             DECISION

     Under the circumstances of this case, the military judge

did not abuse his discretion in allowing Dr. Branaman’s expert

testimony as to Ellis’s risk of recidivism.   The decision of the

United States Air Force Court of Criminal Appeals is affirmed.




                                16
United States v. Ellis, No. 09-0382/AF


     BAKER, Judge (concurring in the result):

     I write separately to emphasize that the result in this

case is limited to the facts of this case.   Among other things,

this was a military judge alone sentencing proceeding and

Appellant did not object to the admission of the Static 99

information on Daubert1 grounds.

     The majority opinion identifies these points.   What it does

not say is that the Static 99 system has not been fully vetted

under Daubert in the context of the military justice system.     In

the civilian context, at least one circuit court of appeals has

expressed skepticism regarding the system.   In that case, Judge

Posner stated:

     [Static 99] may be more accurate than clinical
     assessments . . . but that may not be saying much.
     Estimates of recidivism are bound to be too low when
     one is dealing with underreported crimes such as sex
     offenses. Static 99 treats as a recidivist only
     someone who is convicted of a further sex offense, but
     the recidivism concern is with someone who commits a
     further offense, whether or not he is caught -- yet if
     he is not caught, his subsequent crime does not affect
     the data on which the Static 99 calibrations are
     based.

United States v. McIlrath, 512 F.3d 421, 425 (7th Cir. 2008).

My concern is with how the Static 99 system should be used in

military sentencing, if at all.




1
  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
United States v. Ellis, No. 09-0382/AF


     Military sentencing is predicated on the individualized

consideration of the accused.   This is well established in our

case law.   See United States v. Mamaluy, 10 C.M.A. 102, 106, 27

C.M.R. 176, 180 (1959) (“accused persons are not robots to be

sentenced by fixed formulae but rather, they are offenders who

should be given individualized consideration on punishment”);

see also United States v. Snelling, 14 M.J. 267, 268 (C.M.A.

1982).    A formulaic methodology used for sentencing such as the

Static 99 used here would seem to convert individualized

consideration into a numeric calculation based on static

factors, including matters that in the military justice system

are inherently discretionary, like whether the prosecutor

charges conduct “on divers occasions” or through multiple

counts.

     Nonetheless, in this case, I am confident Appellant

received the individualized sentencing consideration the Uniform

Code of Military Justice requires.    First, this was a military

judge alone trial.   A military judge in particular is suited to

understand the difference between a statement that thirty-eight

percent of persons with the same Static 99 score re-offended and

a statement that there was a thirty-eight percent chance that

this Appellant would re-offend.   Second, Appellant had ample

opportunity to cross-examine the expert and place his concerns

and doubts before the military judge.    Third, the seventeen-page


                                  2
United States v. Ellis, No. 09-0382/AF


stipulation of fact put the static factors on which the system

relies into the individualized context of this case.




                                3
