                       UNITED STATES, Appellee

                                    v.

     Reginold D. Allison, Mess Management Specialist Seaman
                      U.S. Navy, Appellant

                              No. 05-0235

                       Crim. App. No. 200000637

       United States Court of Appeals for the Armed Forces

                       Argued February 23, 2006

                        Decided August 9, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in part and dissenting in
part.

                                 Counsel

For Appellant:    Lieutenant Commander Jason S. Grover, JAGC, USN
(argued).

For Appellee: Lieutenant Mark H. Herrington, JAGC, USN
(argued); Captain Glen R. Hines, USMC, and Commander Charles N.
Purnell, JAGC, USN (on brief).

Amicus Curiae for Appellant: Derrien A. Bonney (law student)
(argued); Phyllis C. Smith, Esq. (assistant professor) (on
brief) – for the Florida A&M University College of Law.

Military Judge:   Peter J. Straub




       This opinion is subject to revision before final publication.
United States v. Allison, No. 05-0235/NA

     Judge ERDMANN delivered the opinion of the court.1

     Mess Management Specialist Seaman Reginald D. Allison was

charged with fleeing apprehension, rape, assault with a means

likely to produce grievous bodily harm, assault with a dangerous

weapon, assault upon a police officer, and burglary with intent

to commit rape in violation of Articles 95, 120, 128, and 129,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 895, 920,

928, 929 (2000).   At a general court-martial he was acquitted of

assault on a police officer but convicted of fleeing

apprehension, assault consummated by a battery (choking),

assault consummated by a battery with a knife, burglary with

intent to commit rape, and rape.       He was sentenced to a

reduction in grade to E-1, forfeiture of all pay and allowances,

confinement for eight years, and a bad-conduct discharge.      The

convening authority approved the findings and sentence which

were then affirmed by the United States Navy-Marine Corps Court

of Criminal Appeals.   United States v. Allison, No. NMCCA

200000637, 2004 CCA LEXIS 257, *32-33 (N-M. Corps Ct. Crim. App.

Nov. 24, 2004) (unpublished).




1
  We heard oral argument in this case at Florida A&M University
College of Law as part of the Court’s “Project Outreach.” See
United States v. Mahoney, 58 M.J. 326, 347 n.1 (C.A.A.F. 2003).
This practice was developed as part of a public awareness
program to demonstrate the operation of a federal court of
appeals and the military justice system.



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United States v. Allison, No. 05-0235/NA

       A witness may testify as an “expert” on a particular

subject matter only if the military judge determines that the

witness is qualified based on his or her “knowledge, skill,

experience, training, or education” regarding that subject.

Military Rule of Evidence (M.R.E.) 702.    The first granted issue

addresses whether the military judge abused his discretion in

allowing two government witnesses who were otherwise qualified

as DNA analysis experts to testify as to the statistical

significance of that analysis.    The second granted issue

addresses whether Allison’s due process rights were violated by

an appellate review that took 1,867 days from trial to the

issuance of a decision by the Navy-Marine Corps Court of

Criminal Appeals.2    We hold that the military judge did not abuse

his discretion in allowing the expert witnesses to testify as to

the statistical significance of the DNA analysis.    We further

conclude that Allison is not entitled to any relief as a result

of the delay in his appellate processing.


2
    We granted review of the following issues:

            I.    WHETHER THE GOVERNMENT’S TWO DNA
                  EXPERTS, MR. Y AND MISS J, WERE WHOLLY
                  QUALIFIED AS EXPERTS IN FORENSIC DNA
                  ANALYSIS, TO INCLUDE EXPERTISE IN THE
                  FREQUENCY OF OCCURRENCES FOR PARTICULAR
                  DNA SAMPLES.

            II.   WHETHER APPELLANT’S DUE PROCESS RIGHTS
                  WERE VIOLATED WHEN IT TOOK MORE THAN
                  FIVE YEARS FOR THE ARTICLE 66 REVIEW BY
                  THE COURT BELOW TO BE COMPLETED.

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United States v. Allison, No. 05-0235/NA

I.   Expert Qualification

                            Background

      The charges against Allison arose from events that occurred

in the early morning hours of November 8, 1998.   A man broke

into the room of Yeoman Third Class (YN3) RR and assaulted and

raped her.   He then strangled her until she was unconscious.

Yeoman Third Class RR was acquainted with Allison and testified

that during the assault she recognized Allison’s eyes through

the ski mask he wore.   She also testified that she recognized

his voice when he threatened her.    Allison’s defense at trial

was that he was not the perpetrator of the rape and that it was

a case of mistaken identity.

      In addition to YN3 RR’s identification of Allison, a condom

containing semen was found on the floor of YN3 RR’s room

following the rape.   Two DNA experts, Mr. Y and Miss J,

conducted DNA testing on the semen in the condom and Allison’s

blood.   Both experts found that the DNA in the two items was a

match.

      Before trial a hearing pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), was held regarding

the admissibility of the DNA evidence.   At that hearing Mr. Y

testified to his almost thirty years as a forensic serologist

and his background and qualifications for conducting polymerase

chain reaction (PCR) and restriction fragment length



                                 4
United States v. Allison, No. 05-0235/NA

polymorphism (RFLP) DNA testing.       He also testified regarding

the procedures involved in PCR and RFLP testing, as well as the

processes by which statistical analysis of the results of those

tests is made.

     In response to questions from defense counsel regarding his

training in statistical DNA analysis, Mr. Y testified that he

had attended three different workshops on the subject.      He

testified that he knew “how to calculate the frequency of

occurrence values for the loci that we use at the laboratory.”

He explained that he did his calculations using a method

provided by the National Research Council (NRC)3 giving guidance

on “how frequence of occurrence values should be calculated.”

He also explained that the database used in his calculations was

provided by a company called PerkinElmer Inc.4 and he explained

how that database was developed by testing individuals from

certain racial groups.

     Defense counsel objected that Mr. Y was not qualified as an

expert in PCR, RFLP or statistical analysis.      The military judge

3
  Mr. J testified that the National Research Council (NRC) is a
part of the National Academy of Sciences and has issued several
reports on the reliability of DNA testing. He also stated that
the method of calculation provided by NCR is widely accepted and
used by a number of laboratories in calculating statistical
frequencies.
4
  PerkinElmer Inc.’s Life & Analytical Sciences division
“provides drug discovery, genetic screening and chemical
analysis instrumentation, reagents and services for scientific
research and clinical applications.”
http://las.perkinelmer.com/About+Us/default.htm.


                                   5
United States v. Allison, No. 05-0235/NA

found that Mr. Y was qualified as an expert in PCR and RFLP

analysis and informed the defense counsel that “the genetics

merely goes to an argument you can bring out in front of the

members.”   Mr. Y went on to testify about PCR and RFLP testing

and its use and acceptability in the scientific community.

Defense counsel again questioned him on his knowledge and

understanding of population genetics and statistical analysis.

While Mr. Y testified that he was not a population geneticist,

he was able to explain the racial distinctions made by the

database upon which he relied and explained the limitations of

the database when confronted with a person of mixed race.    He

also explained that he relied on NCR “confidence intervals”

which provided a “range in frequency of occurrence values that

you say with . . . that size of a data base that you have, if

you went out and took that data base again, you would have a 95

percent confidence that you would get numbers between these

values.”

     Following the Daubert hearing, the military judge ruled

that “the underlying principles and techniques used in DNA

profiling, specifically PCR and RFLP testing, are sound and

reliable and [DNA profiling] is sufficiently reliable to warrant

its use in the courtroom.”   In so holding, the military judge

also found:

            Counsel’s argument that a statistician is
            needed in this determination is misspent.


                                  6
United States v. Allison, No. 05-0235/NA

          The statistical analysis required is based
          on data bases and formulas provided by
          statisticians. The expert testified he
          attended several workshops in the use of
          these formulas giving him the ability to --
          to make the calculations. If anything, this
          may be just grist for cross-examination.

     At trial Mr. Y testified again regarding his qualifications

in DNA testing, his curriculum vitae (CV) was admitted, and the

military judge recognized him as an expert in “the field of

forensic serology and forensic DNA analysis . . . .”      The

defense renewed its earlier objection to Mr. Y’s testimony

regarding the DNA statistical analysis based on the fact that

Mr. Y was not a population geneticist.      The objection was

overruled by the military judge.

     Consistent with his DNA testing report, Mr. Y testified

that there was a match between the DNA in the condom and

Allison’s DNA, and that the frequency of selecting an unrelated

individual at random from the population having this profile is

approximately 1 in 3.9 billion for a Caucasian and 1 in 17

million for an African American.5      Mr. Y also explained how the

numbers that made up the frequencies were calculated and stated




5
  Mr. Y also testified, consistent with his report, that there
was a match between the non-sperm DNA found in the condom, blood
found on a knife that was also found in Yeoman Third Class (YN3)
RR’s room, and YN3 RR’s DNA, and that the “frequency of
selecting an unrelated individual at random from the population
having this profile is approximately” 1 in 3 million for a
Caucasian and 1 in 1.6 million for an African American.

                                   7
United States v. Allison, No. 05-0235/NA

that in fact the numbers given in his report were

“conservative.”6

     Miss J was called to testify as a forensic serologist and a

DNA examiner with fourteen years of experience.   In support of

her qualifications the Government offered her CV which reflected

that she had taken courses in statistics and had participated in

training regarding statistics in DNA analysis.    The defense

objected to her qualification as an expert based on her lack of

advanced degrees and because she was not a population

geneticist.   That objection was also overruled by the military

judge.

     Miss J testified about the DNA testing process and that she

had conducted RFLP testing on the DNA samples.    She concluded

that the DNA from the semen in the condom matched Allison’s DNA.

Her report which summarized these test results was also

admitted.   That report stated that “[t]he estimated probability

of finding this profile in an unrelated person is:   1 in 3

quadrillion in the U.S. Caucasian population, 1 in 900 trillion

in the African American population and 1 in 40 trillion in the

U.S. Hispanic population.”   Miss J also testified regarding



6
  Mr. Y explained that the calculations were “conservative”
“because you’re not using any -- any rare event to -- to make
that calculation[,]” and because they had tested thirteen loci
overall, “and the frequency of occurrence values for those were
calculated independently. In other words, one did not affect
the other.”

                                 8
United States v. Allison, No. 05-0235/NA

these statistical probabilities and explained that these numbers

were conservative ones.

     On cross-examination, defense counsel questioned Miss J

regarding her understanding of the database that formed the

basis for her statistical analysis.   Miss J testified that in

developing these numbers she relied upon a database provided by

the Federal Bureau of Investigations, and that this database was

developed by testing between 300 and 750 people.   She stated

that like the database relied upon by Mr. Y, the database she

relied upon was broken down by racial groups.   Defense counsel

also questioned Miss J regarding her knowledge of statistics in

general.   Miss J testified that the method she followed came

from the NRC and was based on recommendations from a number of

lawyers and statisticians.

                             Discussion

     A witness may testify as an “expert” on a particular

subject matter only if the military judge determines that the

witness is qualified based on his or her “knowledge, skill,

experience, training, or education” regarding that subject.

M.R.E. 702.   The facts or data that an expert relies upon in a

particular case may be referenced before the trial and if of a

type “reasonably relied upon by experts in the particular field

in forming opinions or inferences”, the data need not be

admissible in order for the opinion to be admitted.   M.R.E. 703.



                                 9
United States v. Allison, No. 05-0235/NA

“The military judge has broad discretion as the ‘gatekeeper’ to

determine whether the party offering expert testimony has

established an adequate foundation with respect to reliability

and relevance.”    United States v. Green, 55 M.J. 76, 80

(C.A.A.F. 2001).   A military judge’s decision regarding the

qualifications of an expert witness is reviewed by this court

for abuse of discretion.     See United States v. Billings, 61 M.J.

163, 166 (C.A.A.F. 2005).

     In United States v. Youngberg, 43 M.J. 379, 386 (C.A.A.F.

1995), we held that DNA testing was sufficiently reliable and

“is admissible at courts-martial if a proper foundation is

laid.”   The defendant in Youngberg also argued at trial that

“‘there is a lack of general acceptance of the statistical

approach which quantifies the significance of an alleged

match.’”   Id. at 387 n.9.    We rejected that argument, and

followed the United States Court of Appeals for the Tenth

Circuit which held that “‘statistical probabilities are basic to

DNA analysis and their use has been widely researched and

discussed.’”   Id. at 387 (quoting United States v. Davis, 40

F.3d 1069, 1075 (10th Cir. 1994)).     Like the underlying DNA

analysis, this statistical evidence also is admissible at court-

martial so long as a proper foundation is laid.7


7
  Where, as here, the scientific evidence being offered is not
novel, the proponent of the evidence needs to show only that the
proffered expert relied upon sufficient facts or data, used

                                  10
United States v. Allison, No. 05-0235/NA

       We begin our analysis by concluding that evidence of

statistical probabilities is not only “basic to DNA analysis,”8

but also essential to the admissibility of that analysis.     In

this regard, we follow the state courts which have held that

without evidence of statistical frequencies, DNA evidence is

meaningless and would not be admissible.    See, e.g., People v.

Coy, 620 N.W.2d 888, 898-99 (Mich. Ct. App. 2000) (concluding

that “some qualitative or quantitative interpretation must

accompany evidence of a potential match”); United States v. Yee,

134 F.R.D. 161, 181 (N.D. Ohio 1991) (holding that “[w]ithout

the probability assessment, the jury does not know what to make

of the fact that the patterns match”); State v. Cauthron, 846

P.2d 502, 516 (Wash. 1993) (“Testimony of a match in DNA

samples, without the statistical background or probability

estimates, is neither based on a generally accepted scientific

theory nor helpful to the trier of fact.”); see also M.R.E. 401

(requiring evidence be logically relevant).




reliable principles and methodology and possessed sufficient
knowledge, skill, experience, training, or education. M.R.E.
702. If the opposing party then wishes to challenge
admissibility of the proffered evidence based on the data or
methodology relied upon, that party has the opportunity to do
so. See United States v. Billings, 61 M.J. 163, 166 (C.A.A.F.
2005).
8
    United States v. Davis, 40 F.3d 1069, 1075 (10th Cir. 1994).

                                 11
United States v. Allison, No. 05-0235/NA

     Allison does not challenge the qualifications of Mr. Y and

Miss J with respect to their expertise in DNA analysis, but he

argues that they lacked the necessary qualifications in

populations genetics to be allowed to testify as to the

statistical frequency analysis.    Although statistical

probabilities may be “basic to DNA analysis,” Davis, 40 F.3d at

1075, it does not necessarily follow that all experts qualified

to give testimony on DNA analysis will be qualified to testify

regarding statistical frequencies.     Nor does it necessarily

follow, however, that a witness must be an expert population

geneticist to explain and testify about the methodology and

calculations used to determine the statistical probability of a

match between two DNA samples.

     The record reflects that Mr. Y and Miss J had received

training in DNA statistical analysis and both had considerable

experience in conducting that analysis.    Mr. Y testified that he

had attended three different workshops on statistical analysis

of DNA evidence, and that he knew “how to calculate the

frequency of occurrence values for the loci that we use at the

laboratory.”   Miss J’s CV reflected that she had taken courses

in statistics and had participated in training regarding

statistics in DNA analysis.   Both experts responded to questions

regarding their statistical conclusions and their understanding

of the databases upon which their calculations relied.    The



                                  12
United States v. Allison, No. 05-0235/NA

testimony also established that the method of calculation

utilized in the analysis had been developed by statisticians and

was widely accepted.

      We therefore conclude that the military judge did not abuse

his discretion in allowing the witnesses to testify regarding

the statistical frequencies establishing the relevance of the

DNA evidence.   There was sufficient evidence from which the

military judge could determine that Mr. Y and Miss J possessed

the “knowledge, skill, experience, training, or education” to

testify about the databases upon which they relied, their method

of calculation, and the results of their statistical frequency

determinations.    M.R.E. 702.

II.   Appellate Delay

      In analyzing whether appellate delay has violated the due

process rights of an accused we first look at whether the delay

in question is facially unreasonable.     United States v. Moreno,

63 M.J. 129, 136 (C.A.A.F. 2006).     If it is, then this court

examines and balances the four factors set forth in Barker v.

Wingo, 407 U.S. 514, 530 (1972):      (1) the length of the delay;

(2) the reasons for the delay; (3) the appellant’s assertion of

the right to timely review and appeal; and (4) prejudice.     See

Moreno, 63 M.J. at 135-36; United States v. Jones, 61 M.J. 80,

83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102

(C.A.A.F. 2004).   If we conclude that an appellant has been



                                 13
United States v. Allison, No. 05-0235/NA

denied the due process right to speedy post-trial review and

appeal, “we grant relief unless this court is convinced beyond a

reasonable doubt that the constitutional error is harmless.”

United States v. Toohey, 63 M.J. __ (24) (C.A.A.F. 2006).

Whether an appellant has been denied the due process right to a

speedy post-trial review and appeal, and whether constitutional

error is harmless beyond a reasonable doubt are reviewed de

novo.    United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.

2006) (constitutional error); United States v. Kreutzer, 61 M.J.

293, 299 (C.A.A.F. 2005); United States v. Rodriguez, 60 M.J.

239, 246 (C.A.A.F. 2004) (due process); United States v. Cooper,

58 M.J. 54, 58 (C.A.A.F. 2003) (due process).

        As a general matter, we can dispose of an issue by assuming

error and proceeding directly to the conclusion that any error

was harmless.    See United States v. Gorence, 61 M.J. 171, 174

(C.A.A.F. 2005) (any error in permitting evidence of preservice

drug use was harmless); United States v. Lovett, 59 M.J. 230,

234 (C.A.A.F. 2004) (assuming error in admitting hearsay, the

error was harmless); United States v. Bolkan, 55 M.J. 425, 428

(C.A.A.F. 2001) (any error in defense counsel’s concession that

a punitive discharge was an appropriate punishment was

harmless).    Similarly, issues involving possible constitutional

error can be resolved by assuming error and concluding that the

error is harmless beyond a reasonable doubt.    See United States



                                  14
United States v. Allison, No. 05-0235/NA

v. Cuento, 60 M.J. 106, 111 (C.A.A.F. 2004) (assuming that there

was error and that the error was of constitutional dimension,

error was harmless beyond a reasonable doubt); see also United

States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005) (court

need not determine whether counsel’s performance was

constitutionally deficient where it can determine that any such

error would not have been prejudicial).    Thus, in cases

involving claims that an appellant has been denied his due

process right to speedy post-trial review and appeal, we may

look initially to whether the denial of due process, if any, is

harmless beyond a reasonable doubt.

     Assuming that the delay of over five years to complete

Allison’s appeal of right denied him his right to speedy review

and appeal, we proceed to assess whether that error was harmless

beyond a reasonable doubt.   In determining whether relief is

warranted for a due process denial of speedy review and appeal,

we will consider the totality of the circumstances in the

particular case.   Having considered the entire record, the fact

that we have found no merit in Allison’s other issue on appeal,

and considering all the circumstances of this case, we conclude

that this error was harmless beyond a reasonable doubt and no

relief is warranted.




                                15
United States v. Allison, No. 05-0235/NA

                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                               16
United States v. Allison, No. 05-0235/NA


        CRAWFORD, Judge (concurring in part and in the result):

        While I agree with the majority as to the disposition and

analysis of Issue I and the affirmance of the United States

Navy-Marine Corps Court of Criminal Appeals, I write separately

to disassociate myself from this Court’s analysis of Issue II,

which is based on its prospective rule set forth in United

States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006), and its

misapplication of the Barker v. Wingo, 407 U.S. 514, 530 (1972),

test.    See Moreno, 63 M.J. at 144 (Crawford, J., concurring in

part and dissenting in part).
