        This opinion is subject to revision before publication


          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
                 Nicholas S. BAAS, Corporal
             United States Marine Corps, Appellant
                           No. 19-0377
                     Crim. App. No. 201700318
          Argued March 17, 2020—Decided May 28, 2020
       Military Judges: Forrest W. Hoover and Peter S. Rubin
   For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN
   (argued).
   For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN
   (argued); Lieutenant Colonel Nicholas L. Gannon, USMC,
   Lieutenant Commander Timothy C. Ceder, JAGC, USN,
   and Brian K. Keller, Esq. (on brief); Colonel Mark K.
   Jamison, USMC.
   Judge RYAN delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judges OHLSON,
   SPARKS, and MAGGS (except as to Part II.B), joined.
   Judge MAGGS filed a separate opinion, concurring in
   part and in the judgment.
                      _______________


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


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

§§ 881, 907, 920b, 934 (2012). In accordance with his pleas,
he was acquitted of one specification of raping a child, one
specification of producing child pornography, and one speci-
fication of distributing child pornography. Appellant was
sentenced to forfeiture of all pay and allowances, reduction
to grade E-1, confinement for fifteen years, and a dishonora-
ble discharge. The convening authority approved the sen-
tence as adjudged and the United States Navy-Marine Corps
Court of Criminal Appeals (NMCCA) affirmed the findings
and sentence. Baas, 2019 CCA LEXIS 173, at *55, 2019 WL
1601912, at *19.
   We granted review of two issues:
       I. Did admission of an allegedly positive Diatherix
       Laboratories test for gonorrhea, without testimony
       at trial of any witness from Diatherix,2 violate the
       Sixth Amendment Confrontation Clause?
       II. Did the lower court abuse its discretion in ad-
       mitting an alleged positive Diatherix test result for
       gonorrhea in a child’s rectal swab—where Dia-
       therix failed to follow its own procedures and the
       result was of near zero probative value?
The first question we answer in the negative. As to the sec-
ond question, even assuming error, we find no prejudice. We
therefore affirm the lower court.
                          I. Background
   The charges arose out of Appellant’s abuse of his son,
GB. In June 2016, Appellant’s girlfriend, KM, searched
through his cellphone for evidence of infidelity and discov-
ered messages in the Skype application between him and
“Hailey Burtnett”3 from August 2015 to June 2016. In these

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



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

messages—exchanged simultaneously but with a one-way
video in which Hailey could view Appellant though he could
not view her—Hailey directed Appellant to perform sexual
acts on his infant son. The messages indicated that Appel-
lant complied.
    KM gave Appellant’s phone to his chain of command,
who then alerted the Naval Criminal Investigative Service
(NCIS). NCIS apprehended and interrogated Appellant.
During his NCIS interview, Appellant admitted performing
the acts Hailey directed him to do but insisted that the ob-
ject of those acts was a green teddy bear belonging to his
son, and not GB himself. When the NCIS agents expressed
disbelief at this defense given the obscene specifics and the
inability to commit the acts described with a teddy bear, Ap-
pellant explained that all the graphic descriptions and direc-
tions were the stuff of imagination. Then, attempting to
demonstrate his innocence, Appellant admitted that he had
chlamydia and gonorrhea, and insisted that should NCIS
test GB for the infections, the tests would come back nega-
tive.
    The day after Appellant’s NCIS interview, GB’s mother,
who had separated from Appellant in 2015, took the child to
Coastal Children’s Clinic for an appointment with Dr. Lisa
Kafer, who performed a physical examination on GB. Find-
ing no visible signs of abuse, Dr. Kafer obtained a rectal
swab of GB and ordered a test from Diatherix—a diagnostic
service—to check for chlamydia and gonorrhea. Diatherix
ran a nucleic acid amplification test (NAAT), which came
back positive for gonorrhea. Dr. Kafer then referred GB to
another medical center for a confirmatory culture test and
treatment. That facility ran the wrong test, contaminated
the sample by refrigerating it, and treated GB with an anti-
biotic, which foreclosed the possibility of further confirmato-
ry testing.


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




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

   Before trial, defense counsel moved to exclude the Dia-
therix test result under both the Confrontation Clause and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
The military judge admitted the test result, finding no Con-
frontation Clause violation because the result was not testi-
monial: It was “not made with an eye toward litigation” but
was part of GB’s medical treatment.
    As to the Daubert challenge, both parties submitted vo-
luminous documentary evidence, and the military judge
heard expert testimony from each party in a lengthy Article
39(a), UCMJ, hearing. The defense called Dr. Ham-
merschlag, a pediatrician and certified expert in the field of
sexually transmitted infection (STI) diagnostics, who testi-
fied that the particular NAAT Diatherix used had not been
reviewed by the Food and Drug Administration (FDA), and
the Centers for Disease Control and Prevention (CDC) does
not recommend the use of NAATs generally on prepubescent
boys because the low prevalence of gonorrhea in that popu-
lation creates a high probability of false positives. This
probability, the expert claimed, made it unlikely that GB’s
test result was a true positive.
    The Government proffered two experts: Drs. Stalons and
Hobbs. Dr. Stalons, Diatherix’s executive vice president and
clinical director, explained the company is accredited by the
American College of Pathologists (CAP) and certified for
testing bacteria like gonorrhea. He added that portions of
the NAAT Diatherix uses are proprietary, which meant that
the test had not been reviewed by the FDA. Nevertheless,
the test has a 99% accuracy rate when testing blind samples
as part of its accreditation and a 100% accuracy rate for the
particular gonorrhea tested in this case. Dr. Hobbs, an ex-
pert in microbiology, agreed with the defense expert that the
low prevalence of gonorrhea among boys increased the like-
lihood of false positives, but disagreed with her on what the
likelihood of a false positive was. Dr. Hobbs also testified
that a culture is typically preferred to an NAAT in cases of
suspected child abuse. She nevertheless determined that be-




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

cause Diatherix’s NAAT is highly accurate, precise, sensi-
tive, and specific,4 the test produces valid results.
    Based on the expert testimony and the parties’ submis-
sions, the military judge issued a written ruling applying the
Daubert factors to conclude that the test was “a reliable test
based upon scientific principles.” The military judge found
that the defense expert’s concern that the test had a low pos-
itive predictive value when used for samples from prepubes-
cent boys did not “undermine the scientific principles upon
which the test is based.”5 He cited United States v. Sanchez,
65 M.J. 145, 151 (C.A.A.F. 2007), for the proposition that
“existence of an error rate or disagreement over what that
rate may be does not render the test inadmissible,” and de-
nied defense counsel’s motion to exclude the test result.
    At trial, the Government introduced Appellant’s state-
ments to NCIS, the testimony of several expert and lay wit-
nesses, both Appellant’s and GB’s positive test results for
gonorrhea, and Appellant’s Skype conversations with Hai-
ley.
   The conversations reveal a course of conduct that in-
volved Hailey orchestrating and directing sexual conduct for
Appellant to perform upon himself, see, e.g., Joint Appendix

    4 A test is accurate if it can produce “a true indication of the
nature and quantity of the substance or object being measured.”
S. W. Martin, The Evaluation of Tests, 41 Can. J. Comp. Med. 19,
23 (1977). A test is precise if it is able “to give consistent results in
repeated determinations in the same sample or [subject].” Id. A
test’s sensitivity refers to its ability “to correctly identify those pa-
tients with the disease,” whereas its specificity refers to its ability
“to correctly identify those patients without the disease.” Abdul
Ghaaliq Lalkhen & Anthony McCluskey, Clinical Tests: Sensitivi-
ty and Specificity, 8 Continuing Educ. in Anaesthesia, Critical
Care & Pain 221, 221 (2008) (emphasis added). Diatherix’s test
accuracy was 94.6%, its precision 99.7%, its sensitivity comparable
to other NAATs, and its specificity perfect.
    5 Positive predictive value (PPV) refers to the likelihood that
the specific test result at issue is a true positive. See Lalkhen &
McCluskey, supra note 4, at 221 (“The PPV of a test is a propor-
tion that is useful to clinicians since it answers the question: ‘How
likely is it that this patient has the disease given that the test re-
sult is positive?’ ”).




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

at 911–15, United States v. Baas, No. 19-0377 (C.A.A.F. Dec.
27, 2020) (penetrating his own anus with a cucumber and a
bottle of lubricant on August 22, 2015), and giving Appellant
more insidious instructions to perform sexual acts on his
son. While Appellant was sometimes hesitant to carry out
Hailey’s instructions, he participated in her “game.”
   For example, in a conversation on March 29, 2016, ac-
companied by a one-way live-streamed video call, Hailey di-
rected Appellant to sodomize GB:
      [Hailey:] lick his balls
                his little balls
                put him all in your mouth
                balls and dick
                ....
                lick his butt a little
                yes
                yes
                lay on you[r] back lay hi[m] on u
                so u can lick his ass
                and suck his dick a little
                yes
                ....
                use yo[ur] finge[r a lit]tle
                does he like that
                show me
                closer
                ....
                [put] lotion on yo[ur] dick
                rub h[i]s dick too
                with the l[o]tion
                yes
                on his ass a little
                he li[k]es it
                ....
                slide your finge[r in] a [lit]tle


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

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




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

                kiss down him
                down his chest
                more
                he loves it
                his dick a little
                ....
                show all of him
                get him very hard
                show how hard he is
                just the tip of it
After eleven minutes, the call was interrupted when Appel-
lant’s fellow marine came to his apartment and Appellant
had to put GB to bed. Hailey repeatedly asked Appellant to
wake GB, but Appellant declined:
      [Hailey:] take [GB] with u
                to your room
                ok
      [App.:]   [GB] is asleep now
      [Hailey:] I know put him in yo[ur] room
                ....
                check on him then move him
      [App.:]   He is asleep but if I pick him up
                he will wake up
      [Hailey:] move him slowly
                try to ok
      [App.:]   No woman I’m not moving my sleeping
                child.
On May 8, 2016, Hailey texted Appellant to remind him that
they “never did get to finish up from the other night.” Appel-
lant replied that they would have to proceed without GB be-
cause he was sleeping. Once again Hailey requested that
Appellant wake GB, but Appellant declined. The two ex-
changed similar texts the following day, with Hailey explain-
ing she had just wanted Appellant to put his “mouth on him
a little but don’t wake him up,” and Appellant responding



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

that GB “sleeps on his belly and if I try to roll him over he
will wake.”
    But on May 15, 2016, GB was awake when Hailey texted
Appellant. The two then began a one-way video call that
lasted around thirty minutes, with a brief interruption when
the call stopped and was restarted. During this call, Hailey
again directed Appellant to sexually abuse his son. For ex-
ample:
      [Hailey:] try to get [your penis] in his mouth some
                tel[l] him to open his mouth up wider
                say open it big
                put him on your chest
                so you can suck him a little
                ....
                rub his dick
                then use your finger in his ass very tlly
                slowly
                suck him w[h]ile u do it
                go slowly
                not to[o] much
                use yo[ur] mouth on him
                ....
                put lotion on yo[ur ]dick
                yes
                [p]ut his ass on yo[ur] dick
                yes
                go back and forth
                yes
                like t[ha]t
                ....
                hold him on u
      [App.:]   Have to hurry
      [Hailey:] tight
                ....



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

       [App.:]   Have to go
The conversation and video stream then ended abruptly.
Judging from the chat history, this was the last time Appel-
lant sexually abused GB at Hailey’s direction.
    On June 6, Appellant stated that he would no longer car-
ry out Hailey’s instructions on GB:
       [Hailey:] do u want to cum . . . today
                 ....
                 and then with [GB] 2mrow
       [App.:]   No [GB] for a few weeks
       [Hailey:] come on
                 just one more time
       [App.:]   No when I say something it’s for a reason
   Appellant’s defense focused on two points: (1) that the
Diatherix test was grossly unreliable and therefore GB’s test
result was a false positive, and (2) that even if Appellant
carried out the acts described in these chats, he did so not to
GB, but to GB’s green teddy bear.
    At closing, the parties focused mainly on the second
point. The defense offered varying theories, each of which
trial counsel disputed, to demonstrate that Appellant had
not abused GB: the conversations were simply sexual fanta-
sies, the acts were performed not on GB but on a teddy bear,
the whole thing was a set up perpetrated by Hailey. Defense
counsel also dedicated a large share of his closing to the Dia-
therix test result, emphasizing its unreliable nature. Trial
counsel asserted that the test was reliable and that the posi-
tive result “corroborates the overwhelming digital forensic
evidence that the government has presented in this case.”
But he clarified that GB’s test result was neither dispositive
of the gonorrhea diagnosis, nor necessary to establish Appel-
lant’s guilt on the rape charges: “This test is nothing more
than a screening test. It’s some evidence—some additional
evidence for you to consider. And the case does not rise or
fall on gonorrhea.”
    The members found Appellant guilty on the charges re-
lated to the conduct on March 29, 2016, and May 15, 2016,




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

but found him not guilty of the specifications related to the
conduct on May 2, 2016.
   The NMCCA affirmed the lower court, ruling that the
Diatherix lab report was not testimonial and that Appellant
therefore was not denied his Sixth Amendment right to con-
frontation. Baas, 2019 CCA LEXIS 173, at *34, 2019 WL
1601912, at *10–11. The NMCCA also determined that the
military judge correctly applied the Daubert factors in decid-
ing whether to admit the Diatherix test and the related ex-
pert testimony. 2019 CCA LEXIS 173, at *34, 2019 WL
1601912, at *5–7.
                       II. Discussion
                A. The Confrontation Clause
    Appellant argues that the Diatherix test result was tes-
timonial because (1) Dr. Kafer, the requesting physician,
acted on behalf of law enforcement to obtain the test since
social services—a part of law enforcement—had referred
GB’s mother to her for testing; and (2) Diatherix must have
known the testing of a rectal swab from a one-year-old for
gonorrhea was part of a criminal investigation and was
therefore intended for use at trial. We disagree.
    “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This clause permits the admission of
“testimonial statements of a witness absent from trial . . .
only where the declarant is unavailable, and . . . the defend-
ant has had a prior opportunity to cross-examine.” Crawford
v. Washington, 541 U.S. 36, 59 (2004); see United States v.
Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011). This Court re-
views de novo whether statements are testimonial for pur-
poses of the Sixth Amendment. United States v. Squire, 72
M.J. 285, 288 (C.A.A.F. 2013).
   In determining whether a statement is testimonial, this
Court asks “whether it would ‘be reasonably foreseeable to
an objective person that the purpose of any individual
statement . . . is evidentiary,’ considering the formality of
the statement as well as the knowledge of the declarant.”
United States v. Katso, 74 M.J. 273, 279 (C.A.A.F. 2015)
(quoting United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F.



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

2013)) (collecting cases). “In the end, the question is wheth-
er, in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the [statement] was to ‘creat[e] an out-
of-court substitute for trial testimony.’ ” Ohio v. Clark, 135
S. Ct. 2173, 2180 (2015) (second alteration in original) (quot-
ing Michigan v. Bryant, 562 U.S. 344, 358 (2011)). The
“statement” at issue is the lab report from Diatherix, and
the declarant therefore is Diatherix and its employees who
conducted the test. Thus, our focus in this inquiry here is on
the purpose of the statement in the Diatherix test result,
and not on the purpose others—such as the treating physi-
cian—may have had in facilitating that statement. 6 See
Sweeney, 70 M.J. at 302 (“[T]he focus has to be on the pur-
pose of the statements in the drug testing report itself, ra-
ther than the initial purpose for the urine being collected
and sent to the laboratory for testing.”).
    Here, the totality of the circumstances shows that the
primary purpose of the test was diagnostic and not eviden-
tiary. Although it is true that law enforcement’s involvement
in the process could change the analysis, see United States v.
Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007), there was no such
involvement here. While Appellant seeks to cast Dr. Kafer
as an agent of law enforcement, the evidence is to the con-
trary. Dr. Kafer assessed GB for child sexual abuse, but the
sample was submitted to Diatherix to assess whether he had
contracted a sexually transmitted infection in order to treat
it. Tellingly, when Dr. Kafer received the lab results back
from Diatherix on June 18, she arranged for a confirmatory
test and treatment.
    Although NCIS received the test results shortly after the
test was run, SA Morgan testified at trial that NCIS had no

   6  We recognize that we may consider the purpose non-
declarants had in facilitating a statement when the declarant
knows of that purpose. After all, “[f]ine distinctions based on the
impetus behind the testing and the knowledge of those conducting
laboratory tests” can be relevant in determining whether the de-
clarant’s purpose in making a statement is evidentiary. United
States v. Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F. 2010)
(quoted in Sweeney, 70 M.J. at 302). The declarant had no such
knowledge in this case.




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

interaction with Dr. Kafer at all.7 As in Squire, while Dr.
Kafer was aware of the possible law enforcement related
consequences of the exam and test results, she was acting as
a medical provider, not as an arm of law enforcement. 72
M.J. at 290–91 (doctor’s “medical specialty and experience,
his status as a mandatory reporter, and his completion of
state mandated forms while conducting the examination”
did not result in de facto law enforcement involvement).
   Thus, any alleged law enforcement involvement in direct-
ing GB’s mother to Dr. Kafer had no effect on her primary
purpose in ordering the test. Rather, the test was ordered
from a private lab by a private physician who, upon receiv-
ing the results, prescribed a confirmatory test and treatment
by another private facility. This is a far cry from the facts in
United States v. Gardinier, 65 M.J. 60, 66 (C.A.A.F. 2007),
where we found the victim’s statements to a sexual assault
nurse examiner (SANE) testimonial because the SANE ex-
amined the victim several days after her initial medical ex-
amination and the sheriff’s office had arranged and paid for
the SANE’s examination.
   Further, in an apparent attempt to demonstrate that
NCIS had not followed the proper procedure to get a trust-
worthy test result for GB, during its cross-examination of
the NCIS agent, defense counsel made much of the fact that
Dr. Kafer’s examination was medical and not forensic:
       [DC:]     There was no forensic examination?
       [NCIS:] There was an examination by a licensed
               medical practitioner.
       [DC:]     Right. That would be a medical examina-
                 tion, correct?
       [NCIS:] That was an examination. Yes.




   7  There is some dispute as to whether GB’s mother brought
him to Dr. Kafer at social services’ direction. Even if social ser-
vices had directed GB’s mother to take him to Dr. Kafer, the doc-
tor’s actions—discussed below—show that her primary concern
was GB’s medical treatment, and not whatever interest may have
motivated social services.




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

In light of the record, defense counsel’s characterization of
Dr. Kafer’s examination as medical—not forensic—seems
apt.
    Appellant also argues that because the gonorrhea swab
came from an infant, the people who ordered and adminis-
tered the test must have been aware that the results would
likely be used in a subsequent criminal prosecution and
their primary purpose was therefore to create an “out-of-
court substitute for trial testimony.” Clark, 135 S. Ct. at
2180. First, Diatherix expressly refuted that assertion
through the Article 39(a), UCMJ, testimony of Dr. Stalons.
Second, even if Diatherix knew that the test result might be
used in court, “that knowledge alone does not transform
what would otherwise be a statement for the purpose of
medical treatment into a testimonial statement,” Squire, 72
M.J. at 290, one created as an “out-of-court substitute for
trial testimony.” Clark, 135 S. Ct. at 2180.
   Finally, as the CCA noted, the test result itself lacks any
indicia of the formality or solemnity characteristic of testi-
monial statements:
      [T]here is no sworn attestation on the Diatherix lab
      report. Nor is there a statement on the lab report
      indicating the tests results were intended for evi-
      dentiary purposes. In fact, the Diatherix lab report
      contains no signatures, was not accompanied by
      any chain of custody documentation, and merely
      consists of a single page identifying the patient’s
      name, the “ordering physician,” the date the speci-
      men was collected, received, and reported, the or-
      ganisms tested for, and an “X” in either a column
      labeled “DETECTED” or “NOT DETECTED,” for
      each organism.
Baas, 2019 CCA LEXIS 173, at *33, 2019 WL 1601912, at
*11; cf. Tearman, 72 M.J. at 61 (internal documents
“lack[ed] any indicia of formality or solemnity that, if pre-
sent, would suggest an evidentiary purpose”); see contra
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009)
(affidavit-like “certificates of analysis” created to serve as
evidence at trial were testimonial). This lack of formality is
likely due, in part, to the fact that Diatherix does not typi-
cally do forensic testing and did not know the test would be
used in court.


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

    The surrounding circumstances indicate that Diatherix’s
primary purpose in testing the sample was diagnostic and
not evidentiary. Therefore, the Diatherix test result was not
testimonial and its admission did not violate Appellant’s
Sixth Amendment right to confrontation.
                         B. Daubert
   Appellant argues that the military judge abused his dis-
cretion in admitting the Diatherix test result, based on an
erroneous application of the factors in Daubert, 509 U.S. at
593–94. We do not reach the question whether the military
judge misapplied these factors because, even assuming that
he did, Appellant was not prejudiced by the test’s admission.
    The parties agree that the claimed Daubert error is non-
constitutional in nature. Under Article 59(a), UCMJ, the
“finding or sentence of a court-martial may not be held in-
correct on the ground of an error of law unless the error ma-
terially prejudices the substantial rights of the accused.” 10
U.S.C. § 859(a) (2012). “For nonconstitutional evidentiary
errors, the test for prejudice ‘is whether the error had a sub-
stantial influence on the findings.’ ” United States v.
Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019) (quoting United
States v. Fetrow, 76 M.J. 181, 187 (C.A.A.F. 2017)). The
Government bears the burden of demonstrating that the
admitted evidence was not prejudicial. United States v.
Flesher, 73 M.J. 303, 318 (C.A.A.F. 2014). “In conducting the
prejudice analysis, this Court weighs: (1) the strength of the
Government’s case, (2) the strength of the defense case, (3)
the materiality of the evidence in question, and (4) the quali-
ty of the evidence in question.” Kohlbek, 78 M.J. at 334 (cita-
tions omitted) (internal quotation marks omitted). Based on
the entire record, United States v. Gunkle, 55 M.J. 26, 30
(C.A.A.F. 2001), we conclude that the admission of the Dia-
therix test result did not have a “substantial influence on
the findings.”
         1. The Strength of the Government’s Case
   The Government’s case was strong. Hailey’s instructions
to Appellant during the Skype chat served for members as a
contemporaneous narration of the live-streamed Skype video
she viewed. See supra pp. 6–9. Nor did Appellant claim, in
his interviews with NCIS or otherwise, that the messages


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

were either altered or otherwise not representative of his
conversations with Hailey. Appellant and Hailey clearly co-
ordinated the Skype chats involving GB at times he would
have access to GB, and on several occasions Appellant ex-
plained to her that he could not include GB because the
child was with his mother. The lurid and specific directions,
the descriptive details, the remarks regarding the effects of
the actions upon Appellant’s and GB’s anatomy, Appellant’s
expression of sexual release, and the length of time over
which the admitted chats occurred alone provided sufficient
evidence for the members to find Appellant guilty.
    Further, Appellant himself admitted to NCIS that he
performed the actions described in the messages, albeit that
he did so not on his son, but on GB’s teddy bear—whom he
claimed the two referred to using GB’s name, though every-
one else knew the bear as “Scout.” Appellant gave this same
implausible explanation to social services and his room-
mate’s boyfriend. But the Government’s witnesses and ad-
mitted evidence were strong proof that the victim of Appel-
lant’s actions was GB and not his teddy bear.
    For example, Appellant sent pictures of GB in conjunc-
tion with the exchanges to show Hailey that GB would be
present for a video call. When Hailey repeatedly demanded
that Appellant wake GB to perform sexual acts on him, Ap-
pellant responded: “No woman I’m not moving my sleeping
child.” Days later, when Hailey requested that Appellant
wake GB “to finish up from the other night,” Appellant de-
clined because GB “will be mad because he is hungry.” Tak-
ing these statements at face value, it is doubtful that Appel-
lant made them out of concern for a teddy bear’s sleep,
hunger, or anger. In addition, there are several points dur-
ing the calls when Hailey described GB’s physical reactions
to Appellant’s abuse, and instructed Appellant to adjust the
camera so that she could see GB better and not miss Appel-
lant carrying out her direction, for example: “move the
cam[era] over so I can see”; “move the cam[era] down some
on his hole”; “lower[ ]the cam[era] a [lit]tle . . . show between
his legs.”
   Nor could the Government find any physical evidence to
corroborate Appellant’s explanation. NCIS sent the toy to
the U.S. Army Criminal Investigative Laboratory (USACIL)


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

for testing because some of the messages indicated that Ap-
pellant had ejaculated on his son’s stomach. Forensic testing
revealed no semen on the teddy bear, and no evidence that it
had been washed. Moreover, as the NCIS agent noted during
Appellant’s interview: “Teddy bear’s [sic] mouths can’t fit a
penis or a ball or a testicle, okay? Teddy bear’s [sic] don’t
have penises that you can put your mouth on, or a penis that
you can stroke, or, you know, they don’t have any of that.”
    Finally, one Government witness testified that Appellant
was “frantic” when he learned his phone was in others’
hands. Appellant’s roommate testified that Appellant went
to his girlfriend’s house and “bang[ed] on the door asking
where his phone was. . . . The tone of his voice sounded very
frantic, concerned.” The members could very well have at-
tributed this reaction to a concern that the missing phone
contained evidence of wrongdoing.
    In all, the comprehensive digital forensic evidence, the
testimony of the Government’s witnesses, and Appellant’s
own statements to NCIS and others—which together ren-
dered Appellant’s “teddy bear” explanation improbable—
made the Government’s case strong even without GB’s test
result.
            2. The Strength of the Defense Case
    Conversely, the Appellant’s case at trial was weak. His
principal defense was that he had performed the described
acts on GB’s green teddy bear and that any reference to GB
in the messages was in fact to that teddy bear—a bear
whose actual name was Scout, the name emblazoned on its
chest. As discussed above, supra pp. 16–17, this defense was
improbable. Appellant’s explanation of Hailey’s instructions
strains credulity: descriptions of the victim’s concerns of
sleep and hunger, together with a lack of any physical evi-
dence that a teddy bear was the object of Hailey’s instruc-
tions, belie his defense. As a result, the defense’s case was
weak. Cf. United States v. Hall, 66 M.J. 53, 55 (C.A.A.F.
2008) (describing the appellant’s defense as weak because
the alternative theories advanced at trial were implausible).




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

 3. The Materiality and Quality of the Evidence in Question
    “When assessing the materiality and quality of the evi-
dence, this Court considers the particular factual circum-
stances of each case.” United States v. Washington, __ M.J.
__ (8) (C.A.A.F. 2020) (listing considerations this Court has
used in evaluating these factors). On the one hand, the Dia-
therix test result, offered in conjunction with Appellant’s
positive test result for gonorrhea, was physical evidence cor-
roborating the rape specifications. “Standing alone, such [ev-
idence] might well have been determinative.” Hall, 66 M.J.
at 56.
    The vast majority of the Government’s case-in-chief,
though, focused not on gonorrhea, but on Appellant’s state-
ments to NCIS and others regarding the green teddy bear
defense, the USACIL tests for semen on the green teddy
bear, and the digital forensic analysis that yielded the texts
that revealed the conduct Appellant engaged in at Hailey’s
direction. Further, the materiality of the Diatherix test was
significantly diminished at trial. The defense expert testified
that Diatherix’s failure to follow its own laboratory proce-
dures, the clinic’s inability to confirm the positive result
with a culture and properly preserve the specimen, and the
unreliable nature of the Diatherix test when used for sam-
ples from prepubescent boys made this “one of the worst
managed cases that [she had] dealt with.” She added that
because of this low prevalence of gonorrhea among prepu-
bescent boys, the test’s “positive predictive value was essen-
tially zero,” meaning that “the test was useless in [GB’s] sit-
uation.” The members sought clarification on this point
through two different questions to the defense expert. The
first asked “At what prevalence level is the [positive predic-
tive value] considered too low for the results of a test on an
individual to be considered reliable?” In response, Dr. Ham-
merschlag opined, inter alia, that the NAAT “in this situa-
tion—especially since it’s not FDA cleared, and we have no
idea about its performance—should not be used.” Another
member then asked: “Is it your opinion that the results of a
NAAT for rectal swabs in young males are invalid due to a
lack of data when used for identification of STIs?” Dr.
Hammerschlag answered: “I wouldn’t exactly use the word
‘invalid.’ I think it’s more interpreted with caution. That


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

they more likely frequently may be invalid; and that’s why
we have to do confirmation.” Both members responded in the
affirmative when the military judge asked whether these
responses answered their questions. Based on these ques-
tions and answers, it is likely that the defense’s attack on
the reliability of the test influenced the weight the members
gave that piece of evidence in their deliberations.8
    The Government’s own expert, Dr. Hobbs, readily agreed
that the test sample was mismanaged, that the test result
was not reliable in children, that it “was not appropriate to
use this test without confirmatory testing,” and, damning
with faint praise only that she “found a reasonable chance
that the positive test in this case might represent a true pos-
itive.” Dr. Hobbs’s testimony on cross-examination revealed
a host of concerns she harbored as to the test result in this
case. First, Diatherix failed to follow its own protocols when
it accepted the rectal sample without prior authorization,
conducted a test on an alleged sexual abuse victim, and uti-
lized the test with a child. Second, she was concerned that
none of the CDC guidelines were followed and appeared un-
aware of the fact that the test had not been subject to peer
review. And, finally, she testified that the potential for cross-
reactivity—that the test could identify other bacteria as
gonorrhea—was “a significant limitation for all NAATs,” es-
pecially for rectal samples from children. Thus, the Govern-
ment’s own expert expressed serious reservations about the
reliability of the Diatherix test result.
    Further, although the Government at closing argued that
the test result corroborated the digital forensic evidence, it
clearly also argued that the test result was not dispositive of
any issue—whether GB in fact had gonorrhea, whether Ap-
pellant raped GB, or whether Appellant transmitted gonor-
rhea to GB. In fact, the Government emphasized that the
test result itself was only a presumptive positive—one that
required confirmatory testing, which did not take place. The
Government’s sparing use of the test result in its opening

   8 None of this is to say that the military judge erred when he
admitted the test result, however. As noted above, supra p. 15, we
are agnostic on that issue.




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

and closing statements shows that trial counsel understood
that evidence was not as probative of Appellant’s guilt as
were the messages with Hailey or his admission to NCIS. Cf.
United States v. Brooks, 26 M.J. 28, 29 (C.M.A. 1988) (find-
ing harmless error in part because the “trial counsel did not
refer to the objectionable evidence in his argument”). We are
persuaded that the non-conclusive test result, whose relia-
bility was questioned by expert witnesses for both parties,
was not qualitatively significant to the members’ findings of
guilt.
    Appellant nonetheless suggests that the members’ mixed
verdict shows the admission of the test result was prejudi-
cial. In his view, acquittal of the specifications alleged as on
or about May 2, 2016, show that the members viewed the
positive test result—determined from a rectal sample—as
the key piece of evidence because this was the only conversa-
tion in which Appellant and Hailey did not discuss anal pen-
etration of GB by Appellant. We disagree.
    As an initial matter, the specification charged conduct on
or about May 2. No “conduct” occurred until May 3, and nei-
ther counsel requested, nor did the military judge offer, an
instruction that as a matter of law “on or about” could in-
clude May 3. More importantly, even if the members consid-
ered the May 3 conduct, that conduct was quantitatively and
qualitatively different than that on March 29 and May 15.
First, the portion of the Skype video call describing conduct
on May 3 lasted eleven minutes, as compared to forty-five
minutes on March 29, and twenty-five minutes on May 15.
Second, qualitatively, the conduct on May 3 did not clearly
and unequivocally describe rape of a child, while the conduct
on March 29 and May 15 did.
    The military judge instructed the members that in order
to find Appellant guilty of rape of a child, they had to be
convinced beyond a reasonable doubt that Appellant “com-
mitted a sexual act upon GB.” “Sexual act” was defined as
“the penetration, however slight, of the . . . anus or mouth by
the penis,” or by any other body part or object if done with
the intent to “arouse or gratify the sexual desire of any per-
son.” (emphasis added). In order to find Appellant guilty of
the pornography specifications, the members had to find
that Appellant produced and distributed “a video of a minor


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

engaging in sexually explicit conduct.” The military judge
defined “sexually explicit conduct” as, inter alia, “actual or
simulated . . . sexual intercourse or sodomy, including geni-
tal-genital, oral-genital, anal-genital, or oral-anal” sodomy.
    The trial counsel in his closing argued that “on May 2,
2016 [Appellant] suck[ed] his son’s penis.” Although Hailey
directed Appellant to “kiss down him . . . his dick a little,”
she did not clearly direct him in that conversation to pene-
trate GB’s mouth with his penis—in stark contrast to the
clear directions on March 29, 2016, and May 15, 2016, see
supra pp. 6–7, 9, to sodomize his son both orally and anally.
Similarly, a close reading of that conversation could lead the
members to conclude that Appellant did not produce or dis-
tribute child pornography, as defined in the military judge’s
instructions, because it did not unequivocally describe pene-
tration of any kind.
    In sum, the members were directed to find Appellant
guilty only if they were convinced of guilt beyond a reasona-
ble doubt. For all the reasons stated above, we disagree that
the test result, obtained from GB’s rectal sample, was the
substantial reason the members found Appellant guilty of
the specifications related to March 29 and May 15, and not
guilty of the specifications for conduct on May 2. We find it
far more likely that the members listened carefully to the
military judge’s instructions on these charges, weighed the
evidence, and applied the definitions precisely in their delib-
erations.
    Although the admission of the test result may have had
some influence on the findings, we are persuaded that,
based on the entire record, it did not have a “substantial in-
fluence on the findings.” Kohlbek, 78 M.J. at 334. Even if the
military judge erred in admitting the test result, therefore,
Appellant suffered no prejudice.
                       III. Conclusion
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




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


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


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

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


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




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

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




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

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


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




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

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




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

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




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

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




                               7
            United States v. Baas, No. 19-0377/MC
     Judge MAGGS, concurring in part and in the judgment

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




                               8
