         This opinion is subject to revision before publication




           UNITED STATES COURT OF APPEALS
                     FOR THE   ARMED FORCES
                           _______________

                         UNITED STATES
                             Appellee
                                  v.
                 Antiwan M. HENNING, Major
                  United States Army, Appellant
                            No. 16-0026
                      Crim. App. No. 20150410
         Argued January 12, 2016—Decided March 21, 2016
    Military Judges: Jeffrey P. Nance and Charles L. Pritchard Jr.
     For Appellant: Captain Jennifer K. Beerman (argued);
     Lieutenant Colonel Jonathan F. Potter, Major Christopher
     D. Coleman, and Captain Heather L. Tregle.
     For Appellee: Captain Jihan Walker (argued); Major
     Daniel D. Derner.
     Chief Judge ERDMANN delivered the opinion of the
     court, in which Judges STUCKY, RYAN, and OHLSON,
     and Senior Judge SENTELLE, joined.
                         _______________

   Chief Judge ERDMANN delivered the opinion of the
court.1
   Major Antiwan M. Henning is currently charged with
several violations of Article 120, Uniform Code of Military
Justice (UCMJ). 10 U.S.C. § 920 (2012). After an Article
39(a), UCMJ, hearing conducted pursuant to Military Rule
of Evidence (M.R.E.) 702, United States v. Houser,2 and
Daubert v. Merrell Dow Pharm., Inc.,3 the military judge
determined       that     the     government’s    proffered

1  Senior Judge David B. Sentelle, of the United States Court
of Appeals for the District of Columbia Circuit, sat by
designation, pursuant to Article 142(f), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 942(f) (2012).
2 36 M.J. 392 (C.M.A. 1993), cert. denied, 510 U.S. 864

(1993).
3 509 U.S. 579 (1993).
              United States v. Henning, No. 16-0026/AR
                        Opinion of the Court

deoxyribonucleic acid (DNA) testimony and evidence was
unreliable and granted the defense’s motion to exclude it.
The government appealed the ruling pursuant to Article 62,
UCMJ. The United States Army Court of Criminal Appeals
(CCA) reversed the military judge, finding that he had
exceeded his discretion as gatekeeper and that he had made
several erroneous findings of fact and conclusions of law.
United States v. Henning, No. ARMY MISC 20150410, slip
op. at 7–11 (A. Ct. Crim. App. Sept. 3, 2015). This court
stayed the trial proceedings and granted review to
determine whether the military judge had abused his
discretion. 4 We have determined that the military judge’s
findings of fact are not clearly erroneous, that his
conclusions of law are not incorrect, and that he properly
applied the Daubert framework. Accordingly, we hold that
he did not abuse his discretion in excluding the DNA
testimony and evidence. We therefore reverse the decision of
the CCA and affirm the ruling of the military judge.
                            BACKGROUND
   Henning is accused of waking the alleged victim by
touching her breast, then wrongfully penetrating her vagina
with his tongue before moving her to the floor and allegedly
raping her. During the investigation of this case, the Kansas
City Police Crime Laboratory (KCPCL) obtained a DNA
sample from the underwear the alleged victim was wearing
the night of the charged offenses and compared it to a DNA
sample provided by Henning. The KCPCL determined that
Henning was a “possible contributor” to a minor profile of
DNA found in the underwear and determined that “[t]he
expected frequency of potential contributors to the alleles
present in [the DNA sample taken from the underwear] is
one in 220 unrelated individuals.” The defense moved to
exclude the evidence on the grounds that the formula used

4   We granted review of the following issue:
         Whether the Army court applied the wrong
         standard of review to this Article 62, UCMJ, appeal
         when it found the military judge made erroneous
         findings of fact and conclusions of law.
United States v. Henning, 75 M.J. 118 (C.A.A.F. 2015) (order
granting petition for review).


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            United States v. Henning, No. 16-0026/AR
                      Opinion of the Court

by the KCPCL to interpret the DNA results was unreliable
under the criteria of M.R.E. 702 and Daubert, 509 U.S. at
589. 5 The defense also argued that even if the evidence was
admissible under M.R.E. 702, it could not survive the M.R.E.
403 balancing test.
    At the Daubert hearing, the defense called the
government’s DNA expert witness, Ms. Jessica Hanna, 6 the
Forensic Specialist at the KCPCL who processed the sample
at issue in this case. Ms. Hanna testified that the KCPCL
used the Scientific Working Group on DNA Analysis
Methods (SWGDAM) 7 as a guideline, but that the
calculation they used in this case was a “modified version of
things that are listed in the guidelines,” which the KCPCL
termed “an alleles present statistic.” The modified formula
was based on the assumption that the number of
contributors was unknown and that there was allelic
dropout. 8 Ms. Hanna further testified that the formula was
consistent with prevailing scientific standards, was accepted
in the scientific community, and was reviewable. Ms. Hanna
also testified that the KCPCL laboratory was externally
audited every two years and that the formula used in this
case was reviewed as part of those audits.


5 The defense does not challenge the DNA extraction or the
data that was generated.
6 Ms. Hanna has a bachelor’s degree in genetics and a
master’s degree in forensic science and had been employed
by the KCPCL for ten years at the time of trial. She is
certified by the American Board of Criminalistics as a
molecular biology fellow and is a member of the American
Academy of Forensic Science and the Midwestern
Association of Forensic Scientists. She also has testified in
state and federal courts.
7 The parties agree that the SWGDAM guidelines are the
definitive authority on reliable procedures and methods for
forensic DNA testing analysis.
8 “Allelic dropout” is defined as “the failure to detect an
allele within a sample or [a] failure to amplify an allele
during [polymerase chain reactions]. Scientific Working
Group      on   DNA       Analysis   Methods,    SWGDAM
Interpretation Guidelines for Autosomal STR Typing
by Forensic DNA Testing Laboratories 26 (2010)
[hereinafter SWGDAM guidelines].


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            United States v. Henning, No. 16-0026/AR
                      Opinion of the Court

    The defense next called its expert, Dr. Dan E. Krane,9
who testified as to the “alleles present statistic” formula
utilized by the KCPCL. Dr. Krane testified that, while the
general formulas contained in the KCPCL’s DNA Analytical
Procedure Manual were consistent with the SWGDAM
guidelines, those formulas were “not being applied
appropriately” in this case. Dr. Krane explained that the
SWGDAM guidelines provide for two different statistical
approaches: “one set of approaches for a mixed sample with
an unknown number of contributors where allelic dropout
has not occurred, and another set for a sample with a known
number of contributors where allelic dropout may have
occurred.” Dr. Krane testified that, because the sample
tested by the KCPCL was a mixed sample with an unknown
number of contributors where allelic dropout may have
occurred, it did not fall within either of the SWGDAM
approaches. Dr. Krane further testified that “[t]here is
nothing within the SWGDAM guidelines that provides
suggestions or guidance regarding reliable or useful
approaches for a sample with an unknown number of
contributors where dropout may have occurred.”
    Dr. Krane raised additional concerns regarding the
KCPCL’s analysis, including the “exceedingly small quantity
of starting material” that the KCPCL analyzed. According to
Dr. Krane, the slight amount of DNA analyzed was about
one-fiftieth the amount recommended for a reliable result.
Dr. Krane also noted that the KCPCL’s ultimate calculation
of 1 in 223 was “very weak by — DNA profiling standards.”
Because of his concerns regarding the KCPCL’s procedures,
Dr. Krane concluded that “we are in no better position to say
if Major Henning’s DNA is present with this sample after



9 Dr. Krane is a professor of biological sciences and computer
science at Wright State University in Dayton, Ohio, and is a
fellow of the American Council on Education. He first
testified as a DNA profiling expert in January 1991, and has
testified as an expert witness in over twenty states, several
courts-martial, five federal courts and courts in a number of
foreign countries. He also served on Virginia’s Scientific
Advisory Committee which oversees the policies and
practices of the Virginia Department of Forensic Science.


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           United States v. Henning, No. 16-0026/AR
                     Opinion of the Court

we’ve seen the test results than we were before the tests
were performed.”
    The government then called Mr. Scott Hummel, the
Chief Criminologist of the DNA biology section at the
KCPCL. Mr. Hummel described his role as administrative,
including managing staff and personnel issues. Mr. Hummel
testified that, while he was ultimately responsible for the
quality assurance and technical aspects of the section,
another person was assigned to act as the section’s technical
leader. Mr. Hummel largely reiterated Ms. Hanna’s
testimony, stating that the formula used in this case was not
in conflict with the SWGDAM guidelines and that the
KCPCL’s policies and procedures, including the modified
formula, were externally audited. Mr. Hummel also
disagreed with Dr. Krane’s assertion that an insufficient
amount of “total” DNA was used in the testing but concluded
that “the hope is of course we’ll have enough … in that
minor contributor to make useful interpretations.”
    After the conclusion of the Daubert hearing, the military
judge issued written findings of fact and conclusions of law.
The military judge found that: (1) “SWGDAM is the
definitive authority on reliable procedures and methods for
forensic DNA testing and analysis”; (2) the guidelines
delineate three different statistical calculations for
analyzing DNA, including the Random Match Probability
(RMP), Likelihood Ratio (LR), and Combined Probability of
Exclusion or Inclusion (CPE/I); (3) under the guidelines, the
RMP calculation is only appropriate for a known number of
contributors and can account for allele dropout, while the
CPE/I calculation is utilized where no assumption is made
regarding the number of contributors and there is no allelic
dropout; (4) the SWGDAM guidelines state that the RMP
and CPE/I analyses cannot be combined into a single
calculation because they rely on fundamentally different
assumptions regarding the contributors; (5) the formula
used by the KCPCL was a combination of RMP and CPE/I
calculations, despite being impermissible under the
SWGDAM guidelines; and (6) the sample size used in this
case was the equivalent to three or four human cells, which
was an “exceedingly small quantity” according to Dr. Krane.



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            United States v. Henning, No. 16-0026/AR
                      Opinion of the Court

    The military judge then recognized and discussed his
“gatekeeping” responsibilities and noted that, “[t]he focus of
the inquiry into reliability is on the principles and
methodology employed by the expert, without regard to the
conclusions reached thereby,” citing Daubert, 509 U.S. at
595. He also considered and analyzed the requirements of
M.R.E. 702, Daubert, and Houser. In doing so, the military
judge concluded that: (1) the first four Houser factors 10 were
met by the government and that the only issue before the
court was the reliability of the formula used by the KCPCL
in interpreting the DNA results; (2) the KCPCL’s general
testing procedures were subject to peer review, were
governed by known standards and were widely accepted in
the scientific community; (3) the government, however, had
failed to demonstrate by a preponderance of the evidence
that the “modified” formula utilized by the KCPCL in this
case was widely accepted in the field of forensic DNA
testing, despite Mr. Hummel’s testimony; (4) the SWGDAM
guidelines preclude the combination of the two statistical
calculations “in a given sample because they rely on
fundamentally different underlying assumptions”; (5) while
the KCPCL indicated that the formula has been in use for at
least fifteen years, it appears nowhere in the SWGDAM
guidelines; (6) a preponderance of the evidence did not
indicate that the KCPCL’s modified formula used in this
case was reliable. 11 The military judge also concluded that,
even if the KCPCL’s modified formula was reliable, it would
nevertheless fail the required M.R.E. 403 balancing test. 12


10  The six factors established in Houser are: (1) the
qualifications of the expert; (2) the subject matter of the
expert testimony; (3) the basis for the expert testimony;
(4) the legal relevance of the evidence; (5) the reliability of
evidence; and (6) whether the probative value of the
testimony outweighs other considerations. 36 M.J. at 397.
11 The military judge correctly questioned the reliability of

the methodology, which goes to admissibility, and not the
reliability of the application of the methodology, which goes
to the weight of the evidence. See United States v. Beasley,
102 F.3d 1440, 1448 (8th Cir. 1996).
12 As we hold that the military judge did not abuse his
discretion in excluding the evidence under M.R.E. 702, there
is no need to address the M.R.E. 403 balancing test.


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           United States v. Henning, No. 16-0026/AR
                     Opinion of the Court

    Based on these findings and conclusions, the military
judge granted the defense’s motion to exclude the evidence.
The government timely notified the military judge of its
intent to appeal pursuant to Article 62, UCMJ. Before the
CCA, the government asserted that the military judge had
abused his discretion in excluding the DNA evidence and
expert testimony. Specifically, the government argued that
the DNA evidence at issue was reliable under the Daubert
standard, the military judge had made clearly erroneous
findings of fact, that he had usurped the role of the
factfinder, and that his analysis under M.R.E. 403 was
erroneous. The CCA largely agreed with the government
and set aside military judge’s ruling. Henning, No. ARMY
MISC 20150410, slip op. at 11. Henning subsequently
appealed to this court.
                    STANDARDS OF REVIEW
    “In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed” at
trial. 13 United States v. Buford, 74 M.J. 98, 100 (C.A.A.F.
2015).
       “We review a military judge’s ruling on a motion to
       suppress for abuse of discretion.” United States v.
       Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing
       United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F.
       2000)). “In reviewing a military judge’s ruling on a
       motion to suppress, we review factfinding under
       the clearly-erroneous standard and conclusions of
       law under the de novo standard.” United States v.
       Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus on a
       mixed question of law and fact ... a military judge
       abuses his discretion if his findings of fact are
       clearly erroneous or his conclusions of law are
       incorrect.” Id. The abuse of discretion standard
       calls “for more than a mere difference of opinion.
       The challenged action must be ‘arbitrary, fanciful,


13 While both parties agree that we review the military
judge’s decision directly, both parties argued the relative
merits of the CCA’s decision in their briefs. As the CCA’s
decision and analysis is not relevant to our review, we
proceed directly to considering whether the military judge
abused his discretion.


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            United States v. Henning, No. 16-0026/AR
                      Opinion of the Court

       clearly unreasonable, or clearly erroneous.’” United
       States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)
       (quoting United States v. Lloyd, 69 M.J. 95, 99
       (C.A.A.F. 2010)).
United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011).
    The court reviews de novo whether the Daubert
framework was correctly followed. United States v. Flesher,
73 M.J. 303, 311 (C.A.A.F. 2014). As long as the Daubert
framework is properly followed, this court “will not overturn
the ruling unless it is manifestly erroneous.” United States
v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999) (internal
quotation marks omitted). “Under Daubert …. [t]he
proponent of evidence has the burden of showing that it is
admissible.” United States v. Billings, 61 M.J. 163, 168
(C.A.A.F. 2005) (internal quotation marks omitted). “[T]he
trial judge enjoys a great deal of flexibility in his or her
gatekeeping role: the law grants a district court the same
broad latitude when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability
determination.” Id. at 167 (internal quotation marks
omitted). As such:
       nothing in either Daubert or the Federal Rules of
       Evidence requires a district court to admit opinion
       evidence that is connected to existing data only by
       the ipse dixit of the expert. A court may conclude
       that there is simply too great an analytical gap
       between the data and the opinion proffered. 14
General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)
(emphasis added); see also Billings, 61 M.J. at 168.
                           DISCUSSION
      M.R.E. 702 governs the admissibility of expert
testimony and provides:
       If scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience, training, or education may testify
       thereto in the form of an opinion or otherwise if (1)


14“Ipse dixit” means: “[s]omething asserted but not proved.”
Black’s Law Dictionary 956 (10th ed. 2014).


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              United States v. Henning, No. 16-0026/AR
                        Opinion of the Court

         the testimony is based upon sufficient facts or data,
         (2) the testimony is the product of reliable
         principles and methods, and (3) the witness has
         applied the principles and methods reliably to the
         fact of the case.
Both the Houser and Daubert decisions provide expanded
factors to consider in admitting expert testimony and evidence.
“Although Houser was decided before Daubert, the two
decisions are consistent, with Daubert providing more detailed
guidance on the fourth and fifth Houser prongs pertaining to
relevance and reliability.” 15 Griffin, 50 M.J. at 284.
   Before this court, the government makes many of the
same arguments it made before the CCA. See supra p. 7
Henning counters that the military judge’s findings of fact
are supported by the record and were not clearly erroneous.
He further argues that the military judge relied on the
correct legal principles from M.R.E. 702, Houser and
Daubert, and his application of those principles to the facts
was not clearly unreasonable or manifestly erroneous.
    Both parties agreed at trial that the SWGDAM
guidelines are the definitive authority on reliable procedures
and methods for forensic DNA testing and analysis. The
record also establishes that the SWGDAM guidelines
delineate three different statistical calculations, including
the RMP, LR, and CPE/I. See SWGDAM Guidelines at 12–
14. Further, the record does not contradict that the RMP
and CPE/I rely on fundamentally different assumptions


15   Under Daubert, the military judge must determine:
         (1) Whether the theory or technique can be (and
         has been) tested; (2) Whether the theory or
         technique has been subjected to peer review and
         publication; (3) The known or potential error rate;
         (4) The existence and maintenance of standards
         controlling the technique’s operation; (5) The
         degree of acceptance within the relevant scientific
         community; and (6) Whether the probative value of
         the evidence is substantially outweighed by the
         danger of unfair prejudice, confusion of the issues,
         or misleading the jury.
Griffin, 50 M.J. at 284 (internal quotation marks omitted).



                                  9
           United States v. Henning, No. 16-0026/AR
                     Opinion of the Court

regarding the contributors and that the two methods of
analysis cannot be combined into a single calculation. Id. at
22. The record also fails to contradict the military judge’s
finding that the modified formula used by the KCPCL was a
combination of RMP and CPE/I, despite being impermissible
under the SWGDAM guidelines.
   While the military judge found that the general
SWGDAM formulas contained in the KCPCL procedures
were widely accepted and peer reviewed, the preponderance
of evidence did not establish that the KCPCL modified
formula utilized in this case was widely accepted or peer
reviewed. Indeed, with the exception of the assertion made
by the laboratory employees who use the formula, there is
nothing in the record to show it is employed anywhere
outside of the KCPCL. As case law makes clear, the military
judge is not required “to admit opinion evidence that is
connected to existing data only by the ipse dixit of the
expert.” Joiner, 522 U.S. at 146.
   The government asserts in response that one of the
formulas contained in the SWGDAM guidelines is similar to
the modified formula employed by the KCPCL and, thus, is
accepted by the scientific community. However, a review of
the testimony regarding the KCPCL modified formula and
the SWGDAM formula referenced by the government
demonstrates that they utilize fundamentally different
assumptions in their respective analyses.
    Moreover, the military judge’s conclusions of law were
not incorrect and he properly applied the Daubert
framework. Specifically, the military judge set forth the
facts he found, articulated the correct and relevant legal
principles under M.R.E. 702, Houser, and Daubert, and then
explained how he applied those legal principles to the facts.
“[W]here the military judge places on the record his analysis
and application of the law to the facts, deference is clearly
warranted.” Flesher, 73 M.J. at 312. If the military judge
properly follows the Daubert framework, “we will not
overturn the ruling unless it is ‘manifestly erroneous.’”
Griffin, 50 M.J. at 284. Under this record, it was not an
abuse of discretion for the military judge to find that the




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            United States v. Henning, No. 16-0026/AR
                      Opinion of the Court

government failed to carry its burden of showing the KCPCL
formula was reliable. 16
                            DECISION
    The decision of the United States Army Court of
Criminal Appeals is reversed and the military judge’s ruling
is reinstated. The stay of proceedings issued by this court on
November 24, 2015, is hereby lifted. The record is returned
to the Judge Advocate General of the Army for transmission
to the convening authority for further proceedings.




16 We do not hold that the KCPCL’s modified formula is
unreliable. We only hold it was not an abuse of discretion for
the military judge to find the government had not met its
burden of showing the formula was reliable in this case.


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