                          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


     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7, 2006) (unpublished).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


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United States v. Mullins, No. 07-0401/NA


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 POST-
          TRIAL 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.




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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




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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


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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


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United States v. Mullins, No. 07-0401/NA


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


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United States v. Mullins, No. 07-0401/NA


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




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United States v. Mullins, No. 07-0401/NA


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


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United States v. Mullins, No. 07-0401/NA

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 six-
minute recess).

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United States v. Mullins, No. 07-0401/NA

     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 cross-

examined.    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


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United States v. Mullins, No. 07-0401/NA

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


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United States v. Mullins, No. 07-0401/NA

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).

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United States v. Mullins, No. 07-0401/NA

     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.


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United States v. Mullins, No. 07-0401/NA

     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 sixteen-
page 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.

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United States v. Mullins, No. 07-0401/NA

                           CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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