UNITED STATES, Appellee 

v. 

Russell B. MULLINS, Master-at-Arms First Class 

U.S. Navy, Appellant 

No. 07-0401 

Crim. App. No. 200200988 

United States Court of Appeals for the Armed Forces 

Argued April 20, 2010 

Decided June 28, 2010 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Major Anthony W. Burgos, USMC (argued); 

Lieutenant Kathleen L. Kadlec, JAGC, USN (on brief). 

For Appellee: Brian K. Keller, Esq. (argued); Lieutenant 

Timothy H. Delgado, JAGC, USN (on brief); Colonel Louis J. 

Puleo, USMC, and Lieutenant Duke J. Kim, JAGC, USN. 

Military Judge: Robert B. Wities 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Mullins, No. 07-0401/NA 

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Judge BAKER delivered the opinion of the Court. 

A general court-martial composed of members convicted 

Appellant, contrary to his pleas, of rape of a child, forced 

sodomy of a child, two specifications of indecent acts and two 

specifications of possession of child pornography, in violation 

of Articles 120, 125, and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 920, 925, and 934 (2000), respectively. 

The adjudged and approved sentence included a dishonorable 

discharge, confinement for ten years, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. The United 

States Navy-Marine Corps Court of Criminal Appeals (CCA) 

dismissed one of the specifications of child pornography, but 

affirmed the remaining findings of guilt and the sentence. 

United States v. Mullins, No. NMCCA 200200988, 2006 CCA LEXIS 

327, at *46, 2006 WL 4573011, at *16 (N-M. Ct. Crim. App. Dec. 

7, 2006) (unpublished). In 2008, this Court granted review of 

two issues, including one regarding expert testimony on the 

frequency of false positives in cases of child molestation. The 

Court set aside the decision of the CCA and remanded for a new 

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006), review. United 

States v. Mullins, 66 M.J. 468 (C.A.A.F. 2008). 

In the second CCA opinion, the court held that while there 

was error in allowing the expert to testify about the children’s 

veracity, for the purposes of plain error review it was neither 
United States v. Mullins, No. 07-0401/NA 

3

obvious nor prejudicial in light of the military judge’s 

instructions. United States v. Mullins, No. NMCCA 200200988, 

2009 CCA LEXIS 171, at *15, 2009 WL 1393229, at *6 (N-M. Ct. 

Crim. App. May 14, 2009) (unpublished). The CCA adopted the 

other conclusions from the first CCA opinion. Id. at *22-*23, 

2009 WL 1393229, at *8. We granted review of the following 

issues: 

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THERE 

WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE 

ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR 

TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE 

702. 

 

II. WHETHER THE LOWER COURT DENIED APPELLANT DUE PROCESS 

WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE POSTTRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL 

ASSIGNMENTS OF ERROR. 

We hold that it was error to admit expert testimony from which 

members could infer there was a 1 in 200 chance that the 

allegations were false. However, we conclude that the error did 

not materially prejudice Appellant’s substantial rights in light 

of the military judge’s corrective instructions and the time at 

which they occurred. Additionally, Appellant’s due process 

rights were not violated because the post-trial delay in this 

case was not prejudicial. 
United States v. Mullins, No. 07-0401/NA 

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I. EXPERT TESTIMONY 

A. Background

Appellant had two daughters with Tiffany Miller, DM and SM, 

who were nine years old and seven years old respectively, at the 

time of the offenses. On June 18, 2000, DM told her mother that 

Appellant had done “rude things” to her. A few days later, both 

girls were interviewed by a forensic specialist and a few weeks 

later they were examined by a sexual assault nurse examiner. DM 

and SM testified that between June 1999 and January 2000, 

Appellant forced them to perform indecent acts on him, including 

oral sex and masturbation. SM testified that she had been 

raped. The girls also stated that Appellant had child 

pornography on his computer and forced them to watch those 

materials. 

During the trial, Cynthia Conrad, a forensic child 

interviewer for the Kitsap County prosecutor’s office, testified 

about the types of interviews she performs. She stated that a 

normal seven- to nine-year-old child might understand sexual 

intercourse but would not understand oral or anal sex, male 

masturbation, or ejaculation. She also testified that the 

characteristics she saw in the victims’ interviews were 

“consistent . . . with a child who had been sexually abused or . 

. . a child who may have been sexually abused.” In response to 
United States v. Mullins, No. 07-0401/NA 

5

her testimony, the military judge gave a sua sponte instruction, 

stating: 

[N]o witness is a human lie detector. That is no one 

–- no one who testifies in this courtroom can know if 

someone else is telling the truth or lying. You are 

advised that only you, the members of this court, can 

determine the credibility of the witnesses and what 

the ultimate facts of this case are. No witness, 

including an expert witness, can testify that someone 

else’s account of what happened is true or credible, 

that a person believes the alleged victim or that, in 

fact, a sexual encounter actually occurred. 

 On redirect, Ms. Conrad testified about the frequency of 

children lying about sexual abuse, saying that it was less than 

“1 out of 100 or 1 out of 200.” The military judge then asked 

Ms. Conrad: 

[D]o you have any forensic, that is, scientifically 

accurate way of proving whether the child is telling 

the truth or not? In other words . . . the only way 

that you typically could know that is if the child 

later comes forth and says ‘Yes, I made it up,’ or . . 

. unless that [defendant] ultimately confesses, you 

would ultimately never know who was telling the truth 

and who wasn’t, is that correct? 

 

Ms. Conrad responded affirmatively: “That’s correct.” There 

was no objection at trial and defense counsel cited this last 

bit of testimony during his closing argument. 

B. Analysis

Appellant argues that the military judge erred by admitting 

testimony from Ms. Conrad about the frequency with which 

children make false claims of sexual abuse. Appellant argues 

that the members might infer from the expert’s testimony about 
United States v. Mullins, No. 07-0401/NA 

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children generally an equivalent situation in Appellant’s case, 

i.e., that there was a 1 in 200 chance that Appellant was 

innocent. As a result, Appellant contends that the military 

judge should have provided an immediate corrective instruction 

to the members and struck the testimony from evidence, so that 

he would not be materially prejudiced. 

“Where an appellant has not preserved an objection to 

evidence by making a timely objection, that error will be 

forfeited in the absence of plain error.” United States v. 

Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007) (citing Military Rule 

of Evidence (M.R.E.) 103(d)). In this case, defense counsel did 

not object to Ms. Conrad’s testimony during the trial. The 

plain error standard is met when “(1) there is error, (2) the 

error is plain or obvious, and (3) the error results in material 

prejudice to a substantial right of the accused.” United States 

v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing United 

States v. Rodriguez, 60 M.J. 87, 88-89 (C.A.A.F. 2004)); United 

States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000). “Our 

standard of review for determining whether there is plain error 

is de novo.” Brooks, 64 M.J. at 328 (citing United States v. 

Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002)). 

1. The error in this case 

In a trial involving the sexual assault of a child, “‘[a]n 

expert may testify as to what symptoms are found among children 
United States v. Mullins, No. 07-0401/NA 

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who have suffered sexual abuse and whether the child-witness has 

exhibited these symptoms.’” United States v. Birdsall, 47 M.J. 

404, 409 (C.A.A.F. 1998) (quoting United States v. Harrison, 31 

M.J. 330, 332 (C.M.A. 1990)). “However, an expert may not 

testify regarding the credibility or believability of a victim, 

or ‘opine as to the guilt or innocence of an accused.’” United 

States v. Cacy, 43 M.J. 214, 217 (C.A.A.F. 1995) (quoting United 

States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)); see also

Brooks, 64 M.J. at 328 & nn. 2-3. 

This case is similar to Brooks. There an expert witness 

testified that the frequency of false sexual abuse allegations 

was approximately five percent. Brooks, 64 M.J. at 327. This 

Court concluded that such testimony was “the functional 

equivalent of saying that the victim in a given case is truthful 

and should be believed” and held that the military judge erred 

by admitting it. Id. at 329. The testimony in this case also 

involves a statistical statement of how often false accusations 

of sexual abuse occur, raising the risk that the members would 

infer an equivalent likelihood in Appellant’s case. Such an 

inference derived from expert testimony would invade the 

province of the court members to determine the credibility of 

witnesses. Our conclusion is that it was error to admit the 

statistical testimony in Appellant’s case. An expert inference 

that there is a 1 in 200 chance the victim is lying undermines 
United States v. Mullins, No. 07-0401/NA 

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the duty of the panel members to determine guilt beyond a 

reasonable doubt. 

2. The error was plain and obvious

There are several reasons supporting our determination that 

the error was plain and obvious in this case. First, on direct 

review, we apply the clear law at the time of appeal, not the 

time of trial. United States v. Harcrow, 66 M.J. 154, 159 

(C.A.A.F. 2008) (citing Johnson v. United States, 520 U.S. 461, 

468 (1997)). This case was at the CCA when Brooks, a case 

holding that expert testimony about the statistical frequency of 

children lying about sexual abuse is inadmissible, was decided. 

64 M.J. at 328-30. In Brooks, we concluded there was plain 

error. Therefore, it follows that an error that was plain and 

obvious in Brooks would be plain and obvious in a subsequent 

case when there were no intervening changes in the law. 

Second, related case law at the time of trial also supports 

the conclusion that the error in this case was plain and 

obvious. In United States v. Banks, for example, this Court 

cautioned against expert statistical testimony that placed an 

accused within a definitive profile suggesting guilt. 36 M.J. 

150, 161-63 (C.M.A. 1992). Although after Appellant’s trial, 

United States v. Traum echoed this concern. We reversed, 

finding that the expert’s “statement placed a statistical 
United States v. Mullins, No. 07-0401/NA 

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probability on the likelihood that Appellant committed the 

offense.” 60 M.J 226, 235-36 (C.A.A.F. 2004). 

Third, the error in this case was apparent to the military 

judge. This is evident in the military judge’s sound decision 

to immediately issue a corrective instruction on the role of 

members when the expert initially stated that the children’s 

statements were consistent with those of children who had been 

abused. He reiterated this instruction, in generic form, before 

the members recessed for deliberations. He also asked a 

clarifying question directly after the problematic testimony. 

Thus, while the military judge’s action in addressing the 

testimony was commendable, it also supports the conclusion that 

the erroneous nature of the testimony was obvious to him at the 

time. The question is whether these remedial steps were 

sufficient to cure any potential prejudice arising from the 

statistical statement. 

3. Prejudice

The last step in plain error analysis is to test whether an 

error materially prejudiced Appellant. Prejudice results when 

there is “undue influence on a jury’s role in determining the 

ultimate facts in the case.” Birdsall, 47 M.J. at 411. We look 

at the erroneous testimony in context to determine if the 

witness’s opinions amount to prejudicial error. United States 

v. Eggen, 51 M.J. 159, 161 (C.A.A.F. 1999). Context includes 
United States v. Mullins, No. 07-0401/NA 

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such factors as the immediate instruction, the standard 

instruction, the military judge’s question, and the strength of 

the government’s case -- to determine whether there was 

prejudice. 

“Absent evidence to the contrary, court members are 

presumed to comply with the Military Judge’s instructions.” 

United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003). 

Here, the military judge gave an instruction at the end of Ms. 

Conrad’s direct examination, as well as before deliberations. 

The timing of these instructions distinguishes this case from 

Brooks, where the military judge only instructed the panel 

before the members deliberated, a fact noted and relied upon by 

this Court. 64 M.J. at 330. Here, the military judge gave an 

instruction on credibility, ensuring that the panel members 

would know their role and not accept the percentage testimony as 

a proxy for credibility. We also find it hard to fault the 

military judge for not repeating the same instruction shortly 

after he gave it the first time.1

 If the members complied with 

the instructions then Ms. Conrad’s testimony should not have 

inappropriately bolstered the victims’ credibility. 

 

1

 The record of trial has only seven pages of testimony between 

the military judge’s first instruction and the expert’s 

statistical testimony (during which time there was only a sixminute recess). 
United States v. Mullins, No. 07-0401/NA 

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The military judge also asked Ms. Conrad a clarifying 

question, the answer to which indicated that she did not have “a 

scientifically accurate way of proving whether [a] child is 

telling the truth or not,” thus minimizing the impact of her 

testimony. Because of the military judge’s questions, the CCA 

found that the testimony was based on the expert’s personal 

experience, instead of scientific studies. As a result, the 

testimony did not carry the same weight with the panel members 

as the testimony offered in Brooks. Thus, while Appellant is 

correct that a judicial question is not the same as a corrective 

instruction, we are hard-pressed not to conclude that, given the 

timing of the first instruction as well as the question and 

subsequent answer, the taint from the statistical evidence was 

cured. 

Appellant argues that the testimony was prejudicial because 

it supplemented and buttressed a weak case. As in Brooks, the 

Government had “no other direct witnesses, no confession, and no 

physical evidence to corroborate the victim’s sometimes 

inconsistent testimony.” Brooks, 63 M.J. at 330. However, here 

there was corroborating evidence upon which the court members 

could rely. Both victims testified and were fully crossexamined. Non-relative witnesses testified about the fear the 

girls had of their father. The victims’ testimony was supported 

by the presence of child pornography, illicit instant message 
United States v. Mullins, No. 07-0401/NA 

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chat sessions found on Appellant’s computer, and the properly 

admitted testimony of the expert witness. In short, the members 

had other reasons to believe the victims. Therefore, in this 

case, we conclude there was sufficient other evidence and the 

members were properly instructed such that we are convinced that 

they were able to come to a decision in the case without relying 

on any credibility determinations offered by Ms. Conrad. 

Appellant has failed to demonstrate prejudice. 

II. POST-TRIAL DELAY AND DUE PROCESS 

A. Background

Appellant’s trial was completed on April 6, 2001, but the 

convening authority’s action did not occur until April 4, 2002, 

over 360 days later. Then 448 days elapsed between the date the 

record was docketed with the CCA and the date of the first 

appointed appellate defense counsel’s initial contact with 

Appellant. Appellant had, in succession, four separate 

appointed appellate attorneys. He filed various writs and 

motions pro se, including complaints about delay in the 

appellate process. 

Appellant was released from confinement on March 9, 2007, 

and was immediately placed on appellate leave status. According 

to the appellate record, he then applied for unemployment 

insurance from the state of California on May 4, 2007. A few 

days later he received notice from the California unemployment 
United States v. Mullins, No. 07-0401/NA 

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office that it could not give him benefits because he was still 

on appellate leave status and had not received a DD-214. 

B. Analysis

 “We review de novo claims that an appellant has been denied 

the due process right to a speedy post-trial review and appeal.” 

United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006); 

United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). 

When considering appellate delay, a court must balance four 

factors: “(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.” Moreno, 63 M.J. at 135 

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). Where an 

appellant meets his burden in demonstrating unreasonable 

appellate delay, the burden shifts to the government to show 

that the due process violation was harmless beyond a reasonable 

doubt. United States v. Ashby, 68 M.J. 108, 125 (C.A.A.F. 

2009). Even assuming a due process violation occurred in this 

case,2

 we hold that it was harmless beyond a reasonable doubt 

because the record contains no evidence of prejudice warranting 

relief. 

 

2

 “‘[No] single factor is required for finding a due process 

violation and the absence of a given factor will not prevent 

such a finding.’” United States v. Bush, 68 M.J. 96 at 103 n.8 

(C.A.A.F. 2009) (quoting Moreno, 63 M.J. at 136). 
United States v. Mullins, No. 07-0401/NA 

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In examining the Government’s burden to show harmlessness 

beyond a reasonable doubt, we review Appellant’s three arguments 

regarding prejudice: the delay kept him from receiving 

unemployment benefits because he lacked a DD-214, it increased 

his anxiety because he had to register as a sex offender, and 

“[a] more timely appeal . . . would have enabled him to initiate 

legal proceedings to obtain visitation and legal custody of his 

now-grown children.” Since Appellant has not prevailed on the 

expert testimony issue, he cannot claim that the delay hurt his 

ability to retry the case or would have enabled him to seek 

custody of his children in a more timely fashion. Moreno, 63 

M.J. at 140. 

The question of unemployment benefits is a closer call. 

Appellant asserts that if his appeal had been adjudicated with 

less delay he would no longer be on appellate leave and would 

have received unemployment benefits. Appellant argues this is 

analogous to “recognized interference with post-military 

employment opportunities as a form of prejudice that warrants 

relief for unreasonable post-trial delay.” United States v. 

Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (citing United States v. 

Sutton, 15 M.J. 235 (C.M.A. 1983)). The appellate question is 

not whether such a scenario could amount to prejudice; it could. 

The question is whether the record reflects that such prejudice 

existed in this case. 
United States v. Mullins, No. 07-0401/NA 

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We conclude that the record does not demonstrate that it 

was Appellant’s leave status that kept him from receiving the 

benefits and that he would not have been denied on some other 

grounds.3

 See Bush, 68 M.J. at 103 n.8. In United States v. 

Schweitzer, 68 M.J. 133, 138-39 (C.A.A.F. 2009), and Ashby, 68 

M.J. at 125, this Court denied the appellants’ assertions that 

post-trial delay was prejudicial because it caused difficulty in 

finding adequate employment. In Ashby, as in Jones, the Court 

was provided with affidavits from would-be employers supporting 

the appellants’ claims. 68 M.J. at 125 n.11 (Ashby); 61 M.J. at 

81 (Jones). The record in this case does not contain an 

equivalent affidavit, nor does it contain any other 

authoritative evidence that a person in Appellant’s 

circumstances would have been eligible for unemployment benefits 

and received them once his appeal was final. Having carefully 

examined the entire record and finding no convincing evidence of 

prejudice, we conclude that, under the totality of the 

circumstances, the post-trial delay was harmless beyond a 

reasonable doubt. 

 

3

 Appellant filed two motions with this Court on April 16, 2010, 

that were denied. One was to take judicial notice of a sixteenpage printout from the California Employment Development 

Department addressing employment benefits and misconduct 

generally. The other motion was to attach a California 

Unemployment Insurance Program fact sheet and the Appellant’s 

most recent Social Security statement. Neither directly 

addressed Appellant’s circumstances. 
United States v. Mullins, No. 07-0401/NA 

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CONCLUSION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.