                       UNITED STATES, Appellee

                                       v.

                  Bud W. TYNDALE, Staff Sergeant
                   U.S. Marine Corps, Appellant

                                No. 00-0113
                        Crim. App. No. 97-1741

    United States Court of Appeals for the Armed Forces

                       Argued October 10, 2000

                     Decided December 17, 2001

     BAKER, J., delivered the judgement of the Court.
CRAWFORD, C.J., filed an opinion concurring in part and in
the result. SULLIVAN, S.J., filed an opinion concurring in
the result. GIERKE, J., filed a dissenting opinion, in
which EFFRON, J., joined.


                                   Counsel


For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR
(argued); Major Dale E. Anderson, USMC.


For Appellee: Captain William J. Collins, USMC (argued);
Colonel Kevin M. Sandkuhler, USMC, and Lieutenant Commander
Philip L. Sundel, JAGC, USNR (on brief); Lieutenant Colonel
Marc W. Fisher, Jr., USMC.


Military Judges:      B. P. Jenkins and A. W. Keller.
       THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States vs. Tyndale, No.00-0113/MC


   Judge BAKER delivered the judgement of the Court.

   In 1997, a special court-martial composed of officer

members convicted appellant, contrary to his pleas, of

wrongful use of methamphetamine, in violation of Article

112a, Uniform Code of Military Justice, 10 USC § 912a.

Appellant was sentenced to a bad-conduct discharge and

reduction to pay grade E-3.   The convening authority

approved this sentence and, except for the bad-conduct

discharge, ordered it executed.   The Court of Criminal

Appeals affirmed.   51 MJ 616 (1999).

    This Court granted review of the following issue:

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRED BY AFFIRMING THE MILITARY JUDGE’S
     ADMISSION OF EVIDENCE OF A PRIOR POSITIVE URINALYSIS
     AND PRIOR INNOCENT INGESTION DEFENSE.

     and specified review of the following issue:

     WHETHER, WITH RESPECT TO THE ADMISSION OF POLYGRAPH
     EVIDENCE: (1) THE MILITARY JUDGE ERRED WHEN HE
     ADMITTED EVIDENCE OF POLYGRAPH EXAMINATIONS AT
     APPELLANT’S COURT-MARTIAL HELD AFTER THIS COURT’S
     DECISION IN UNITED STATES V. SCHEFFER, 44 MJ 442
     (1996), AND BEFORE THE SUPREME COURT’S REVERSAL OF
     THAT DECISION IN UNITED STATES V. SCHEFFER, 523 U.S.
     303 (1998); (2) BY FIRST INTRODUCING EVIDENCE OF TWO
     EARLIER POLYGRAPH EXAMINATIONS AND BY NOT OBJECTING TO
     THE PROSECUTION’S INTRODUCTION OF EVIDENCE OF A THIRD
     POLYGRAPH EXAMINATION IN REBUTTAL, APPELLANT FORFEITED
     ANY ERROR IN ADMITTING THE PROSECUTION’S POLYGRAPH
     EVIDENCE; AND (3) ANY ERROR IN ADMITTING POLYGRAPH
     EVIDENCE OPERATED TO APPELLANT’S SUBSTANTIAL
     PREJUDICE.




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United States vs. Tyndale, No.00-0113/MC


     For the reasons set forth below, the decision of the

Court of Criminal Appeals is affirmed.


                          Background

     In January 1994, appellant’s urine sample tested

positive for methamphetamine.       He was tried by a special

court-martial consisting of officer members and was

acquitted.   Appellant did not contest that he tested

positive for methamphetamine, but instead, presented the

defense of innocent ingestion.       Specifically, at that

court-martial, he asserted that someone had, without his

knowledge, placed the drug in coffee he was served while

playing guitar with his brother and other individuals at a

residence near Ocean Beach in San Diego.

     On Monday, October 7, 1996, appellant submitted a

urine sample that again tested positive for

methamphetamine.   Appellant testified at trial regarding

his activities several days before the urinalysis.       He

stated that he was an experienced musician and had played

at a number of venues in the area.       On the Saturday night

prior to the urinalysis, he had agreed to play guitar at a

private party in Dana Point, California, for a fee of $75.

Appellant and his brother showed up at the party at about

6:00 p.m., where there were between forty-five and sixty



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United States vs. Tyndale, No.00-0113/MC


people present.   He described the crowd as “pretty

radical.”    Although he never got the name of the person who

hired him, he played “halfway through the night” before

being paid in cash.   He further explained that around

midnight, his brother told him there was drug use going on

in another part of the residence.     Nonetheless, appellant

remained at the party and, by his account, consumed about a

case of beer over the course of the evening.

     Following receipt of the results of the urinalysis,

appellant told his battalion commander that he did not know

how he tested positive and that someone must have slipped

him the drug in a drink at a party where he had played his

guitar the weekend prior.    Since the gathering was a

“moving out” party, appellant was unable to subsequently

locate the apartment or its occupants.

     At the outset of appellant’s trial in April 1997,

trial counsel moved for a preliminary ruling admitting

evidence of appellant’s 1994 positive urinalysis and

appellant’s accompanying explanation regarding innocent

ingestion.   The Government sought to introduce this

information into evidence in the form of testimony from




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United States vs. Tyndale, No.00-0113/MC


Major Glazier, the prosecutor during appellant’s 1994

court-martial.1

      The Government argued that the testimony was legally

and logically relevant under Mil.R.Evid. 404(b), Manual for

Courts-Martial, United States (1995 ed.),2 on the issue of

knowledge.    Defense counsel objected, arguing that

appellant’s prior urinalysis was being offered to

demonstrate that appellant was predisposed to commit the

crime.   Further, even if this hurdle were overcome, the

evidence was outweighed by the danger of unfair prejudice.

And finally, he asserted that the prior urinalysis did not

prove that appellant committed the prior act.           The military

judge preliminarily ruled the evidence of the January 1994

urinalysis could only be admitted in rebuttal to a defense

of innocent ingestion.

      During the defense case, the Government again argued

for admissibility of this evidence, contending that the

defense counsel opened the door when he asked appellant,

“Did you knowingly use, let me restate that, did you use




1
 Appellant having been acquitted, the Government was not required to
keep a verbatim record of trial. RCM 1103(e), Manual for Courts-
Martial, United States (1995 ed.).
2
 Manual provisions are cited to the version in effect at the time of
appellant’s court-martial. The current versions are unchanged.


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United States vs. Tyndale, No.00-0113/MC


drugs?”   Defense counsel’s objection was sustained, and the

defense proceeded with testimony in the nature of character

witnesses as to appellant’s truthfulness, and testimony

regarding two exculpatory polygraphs.

     Defense counsel asked the first polygrapher what

relevant questions were asked of appellant.    The

polygrapher responded, “In the past two years have you

knowingly taken any unlawful substances?” and, ”Other than

for medicinal purposes, have you taken any drugs over the

past two years?”    Trial counsel objected, on among other

grounds, that an additional relevant question had been

omitted from the witness’s answer, to wit, “Do you suspect

that anyone may have spiked your beverages while you were

performing your music gig over the weekend before your

urinalysis test?”    Appellant had answered yes to this

question.   The witness also opined that these polygraph

results lacked indicia of deception.

     The defense put on a second polygrapher who testified

that there were two relevant questions asked:    “Did you

knowingly use any illegal drugs during October 1996?” and,

“[A]t any time within one week prior to your October 96’

positive urinalysis, did you intentionally ingest

methamphetamine or amphetamine?” (Emphasis added.)    He




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United States vs. Tyndale, No.00-0113/MC


further stated that appellant had showed a lack of

deception as to these questions.

     Upon conclusion of the defense case, the Government

again moved to admit evidence of the 1994 urinalysis and

appellant’s corresponding explanation of innocent

ingestion.   As discussed below, this time, the military

judge admitted the evidence.   Trial counsel then proceeded

in rebuttal with the testimony of Major Glazier.     In

addition, to rebut the defense polygraph evidence, an

examiner from the Naval Criminal Investigative Service

testified that appellant had shown deception on a polygraph

he administered.   Defense counsel did not object.    In fact,

he expressly acceded on the record to admission of this

testimony.

               Admission of the Prior Urinalysis


     Mil.R.Evid. 404(a) prohibits admission of evidence of

a person’s character for the purpose of proving that the

person acted in conformity therewith on a particular

occasion.    Therefore, in the past, this Court has held that

the mere fact a person used drugs at a time prior to the

charged offense does not make it more or less probable that

the person knowingly used drugs on the date charged.

United States v. Cousins, 35 MJ 70, 74 (CMA 1992).     More



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United States vs. Tyndale, No.00-0113/MC


specifically, the Court has rejected the notion that

evidence of a prior ingestion alone rebuts a claim that a

subsequent ingestion was unknowing.    United States v.

Graham, 50 MJ 56 (1999).

     However, evidence of prior drug use is not

inadmissible per se at a court-martial.    Mil.R.Evid. 404(b)

permits evidence of “other crimes, wrongs, or acts” to

prove facts other than a person’s character, such as

“intent,…knowledge,…or absence of mistake or accident.”

(Emphasis added.)   The military rule, like its federal

counterpart, “generally prohibits the introduction of

evidence of extrinsic acts that might adversely reflect on

the actor’s character, unless that evidence bears upon a

relevant issue in the case such as motive, opportunity, or

knowledge.”   Huddleston v. United States, 485 U.S. 681, 685

(1988).

     The test for admissibility of evidence of other acts

is “whether the evidence . . . is offered for some purpose

other than to demonstrate the accused’s predisposition to

crime[.]”   United States v. Taylor, 53 MJ 195, 199 (2000),

quoting United States v. Castillo, 29 MJ 145, 150 (CMA

1989).    This Court has consistently held that Mil.R.Evid.

404(b) is a “rule of inclusion.”    See, e.g., United States

v. Tanksley, 54 MJ 169, 175-76 (2000); United States v.


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United States vs. Tyndale, No.00-0113/MC


Baumann, 54 MJ 100, 104 (2000); United States v. Browning,

54 MJ 1, 6 (2000).

     Evidence offered under Mil.R.Evid. 404(b) must meet

three criteria for admissibility.    First, the evidence must

reasonably support a finding by the court members that

appellant committed the prior crimes, wrongs, or acts.

Second, the evidence must make a fact of consequence more

or less probable.    Third, the probative value of the

evidence must not be substantially outweighed by the danger

of unfair prejudice.   United States v. Reynolds, 29 MJ 105,

109 (CMA 1989); Mil.R.Evid. 401 & 403.

     (1) Reasonable Support.   In this case, the “prior

acts” the Government sought to introduce at trial were (a)

a prior positive urinalysis from 1994 to show that

appellant ingested methamphetamine on that occasion and (b)

statements made by appellant to explain the circumstances

under which he may have unknowingly ingested the substance.

As for the urinalysis, the Government sought to show the

fact of ingestion alone, as opposed to an effort to raise

the inference of knowing and wrongful use on the prior

occasion for which appellant was acquitted.

     Neither during his colloquies with the military judge

nor during his closing comments to the members did trial

counsel argue wrongfulness or knowledge, as those elements


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United States vs. Tyndale, No.00-0113/MC


related to the 1994 ingestion.     Moreover, had he done so,

this Court’s holding in Graham would have required him to

follow the foundational rules established under United

States v. Harper, 22 MJ 157 (CMA 1986), United States v.

Murphy, 23 MJ 310 (CMA 1987), and United States v. Ford, 23

MJ 331 (CMA 1987).

     Trial counsel sought to use appellant’s explanation of

the circumstances related   to the 1994 positive result to

rebut appellant’s claim that his 1996 ingestion was

unknowing and innocent.   However, the previous urinalysis

result and the statements were interdependent, such that

the prosecution could not have offered one without the

other.   Admission of the urinalysis result without some

factual predicate would have been precluded.     United States

v. Matthews, 53 MJ 465, 470 (2000).     Likewise, introduction

of the statements without reference to the positive result

would have made little sense, and in any event, would have

led members back to appellant’s 1994 urinalysis as the

predicate for those statements.

     To satisfy the first requirement under Reynolds, trial

counsel introduced a stipulation of fact from appellant’s

first court-martial to show the sample submitted and

subsequently analyzed in that case was appellant’s.     In

addition, through the testimony of Major Glazier, he


                              10
United States vs. Tyndale, No.00-0113/MC


elicited appellant’s out-of-court statements regarding the

urinalysis result and the related circumstances.      Thus, as

a matter of law, this evidence reasonably supported a

finding by the members that appellant ingested

methamphetamine in 1994, and that he made the statements

regarding the circumstances related to that ingestion.

     (2)     Probative Value.   The Government offered the

evidence of the previous urinalysis and the related

circumstances on the issue of appellant’s knowledge and to

rebut his theory of how he may have unknowingly ingested

methamphetamine on this occasion, i.e., to reduce the

probability that appellant would again have found himself

situated in similar, questionable circumstances.      The

question, then, is whether this evidence made the fact of

appellant’s knowing use of methamphetamine on this occasion

more or less probable.

     Like the majority of courts, this Court has accepted

the doctrine of chances as a viable theory of logical

relevance.    Matthews, 53 MJ at 470.    This doctrine posits

that it is unlikely a defendant would be repeatedly,

innocently involved in similar, suspicious circumstances.

Id.; 2 Wigmore on Evidence § 242 at 45 (Chadbourne rev.

1979) (“The doctrine of chances and the experience of

conduct tell us that accident and inadvertence are rare and


                                 11
United States vs. Tyndale, No.00-0113/MC


casual; so that the recurrence of a similar act tends to

persuade us that it is not to be explained as inadvertent

or accidental.”).

       As the doctrine suggests, to avail oneself of its use,

the proponent of the evidence must show that the “other

acts” are sufficiently similar.     See Matthews, supra.

While the factual bases at issue between the charged and

uncharged acts need not mirror one another, there must be

more than “the crudest sort” of similarities between the

two.    Id. (quoting United States v. Mayans, 17 F.3d 1174,

1183 (9th Cir. 1994)).    Otherwise, there is too great a

risk that minor similarities will be used to bootstrap

prior acts into courts-martial, with all the attendant

risks that members will infer the accused is a bad person

or convict on the basis of the prior act.    Thus, here, the

Government was required to show that the previous ingestion

of methamphetamine was under circumstances sufficiently

similar to those related to the charged instance of use in

order to avail itself of the doctrine of chances.

       Appellant’s explanation of the circumstances that

might have resulted in his unknowing ingestion of

methamphetamine in 1994, the uncharged act, were as

follows:    Appellant and his brother accompanied an

individual whom he had just met, and known only to them as


                               12
United States vs. Tyndale, No.00-0113/MC


Chris, to an apartment to play music with several other

individuals.    Appellant described the individuals at the

apartment as having “long hair [and] tattoos,” people who

might be “druggies.”

     He further related that while at the residence,

someone made him a cup of coffee, and he subsequently

tested positive for methamphetamine.       Appellant

subsequently located Chris, who ostensibly agreed to

testify on appellant’s behalf in support of his theory of

innocent ingestion.       However, according to appellant, the

contact number for Chris proved to be false, and Chris was

neither seen nor heard from again.

     There are any number of similarities between

appellant’s 1994 and 1996 accounts.       In both instances,

appellant:

     (1)     performed at a party frequented by “druggies,” or

             where drug use was reported and he accepted open

             beverages;

     (2)     was unable to either identify or locate the

             apartment occupants because they moved out;

     (3)     was unable to locate the apartment;

     (4)     did not ask civilian or government authorities

             for assistance in locating the individuals he




                                  13
United States vs. Tyndale, No.00-0113/MC


           argued had secretly placed methamphetamine in his

           drinks; and

     (5)   testified in both instances that his brother was

           the only witness available to testify on his

           behalf as to the events at the residences.

     While the circumstances in 1994 did not mirror those

related to the 1996 use, they were substantially similar

and were clearly probative on the issue of whether

appellant plausibly found himself in a similar circumstance

in 1996 where he might unknowingly be given a controlled

substance.   This evidence met the requirements for logical

relevance.

     It is worth pausing here to make the point that while

the doctrine of chances is a viable theory of logical

relevance, it is not a roll of the appellate dice.    Rather,

as illustrated here, its application is limited to those

circumstances where actions are sufficiently similar to

demonstratively contribute to the truth finding process.

Its use should not be frequent, except in rare factual

settings such as the one presented in this case.

     (3)   Danger of Prejudice.    It is also worth noting the

significant, potential danger presented by this type of

evidence, particularly in cases involving prior urinalysis

testing.   In the absence of proper precautions taken by the


                              14
United States vs. Tyndale, No.00-0113/MC


military judge, court members may consider such evidence

for the very purpose for which it may not be used, viz.,

that the accused is a bad person, and that if he did it

before, he probably did it this time.    The accused may, in

essence, be convicted not on the basis of the evidence at

trial, but based on the prior act instead.    These concerns

are heightened where the evidence in question arose in the

context of a court-martial at which the accused was

acquitted.

     Careful weighing of such evidence by the military

judge to ensure its probative value is not substantially

outweighed by the danger of unfair prejudice to the accused

is one such precaution.   Proper instruction to the members

concerning the narrow, limited purpose for which this

evidence may be considered is another.    In this case, the

evidence offered relating to appellant’s 1994 account,

linked as it was to his prior urinalysis, was

unquestionably prejudicial.   However, the offered evidence

was also unquestionably probative of the credibility of

appellant’s 1996 defense.

     The military judge conducted the requisite balancing

on the record and determined that admission of this

evidence would not unfairly prejudice appellant.    A

military judge enjoys wide discretion under Mil.R.Evid.


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United States vs. Tyndale, No.00-0113/MC


403.    United States v. Phillips, 52 MJ 268, 272 (2000).

Where the military judge properly weighs the evidence under

Mil.R.Evid. 403 and articulates the reasons for admitting

the evidence, this Court will reverse only for a clear

abuse of discretion.      United States v. Browning, 54 MJ 1, 7

(2000).

       Throughout the trial, the military judge was clearly

concerned about the prejudicial effect of this evidence.

Prior to trial on the merits, the issue of admissibility

was litigated in limine.       As a result, after hearing

evidence on the motion and argument from both sides, he

made a preliminary ruling that the evidence would be

admissible in the Government’s case on rebuttal, but only

if the defense rested its case on the theory that

methamphetamine had been “surreptitiously inserted” into

appellant’s drink at the Dana Point party.3

       The military judge further ruled that should this be

the case, the evidence would not be unfairly prejudicial in

rebutting such a defense because it was “indispensable for

a full understanding of the charged offense,” and it did

not “tend to persuade by an illegitimate means.”            Later,


3
 Appellant Exhibit VI is titled “NOTICE OF THE DEFENSE’S INTENT TO OFFER
THE DEFENSE OF INNOCENT INGESTION.” This document outlines the defense
theory as to how appellant may have unknowingly ingested
methamphetamine on the night of October 5, 1996, at the Dana Point
party.


                                  16
United States vs. Tyndale, No.00-0113/MC


after appellant’s testimony on direct, the military judge

rejected trial counsel’s contention that he should be

allowed to cross-examine on the 1994 urinalysis and related

circumstances.

      Indeed, it was not until after the circumstances of

the 1996 Dana Point party were received in evidence and the

defense introduced evidence from one of its polygraphers

that appellant did not intentionally ingest methamphetamine4

that the military judge ruled trial counsel could introduce

the evidence of the previous urinalysis and appellant’s

statements relating thereto.        This evidence was used to

challenge the credibility of appellant’s argument that

someone at the Dana Point party may have slipped the

illegal substance into his drink.         Therefore, the military

judge did not abuse his discretion on this issue.

      Finally, the military judge gave a clear and narrowly

crafted instruction cautioning the members that they could

only consider the evidence of the 1994 urinalysis on the

issues of knowledge and intent, and to rebut the issue of

innocent ingestion.      Those instructions were as follows:

      Evidence that on 14 January of 1994, the accused
      submitted a urine sample that subsequently tested
      positive for methamphetamine may be considered by


4
 Trial counsel also successfully argued at this point for inclusion of
appellant’s additional polygraph statement that he believed his drink
had been spiked.


                                  17
United States vs. Tyndale, No.00-0113/MC


     you for the limited purpose of its tendency, if
     any, to:

          One, prove knowledge on the part of the
          accused that he wrongfully used
          amphetamine/methamphetamine;

          Two, to prove that the accused intended
          to use amphetamine/methamphetamine;

          Three, to rebut the issue of innocent
          ingestion raised by the defense.

     You may not, gentlemen, consider this evidence
     for any other purpose and you may not conclude
     from this evidence that the accused is a bad
     person or has criminal tendencies and that he,
     therefore, committed the offense charged.

     As noted earlier, the fact of appellant’s previous

positive result was so interjoined with his testimony as to

why his sample might have tested positive on that occasion

that neither could be divorced from the other.    The record

echoes throughout that both sides understood and treated

the 1994 urinalysis as a vehicle for putting appellant’s

1994 explanation before the members.   Therefore, the

military judge’s reference to the urinalysis in his

instruction on uncharged misconduct, as a matter of logic,

included appellant’s statements relating to it.

Furthermore, the military judge also instructed, inter

alia, on the issues of ignorance or mistake as to

appellant’s knowledge of the presence of the substance in

his drink, circumstantial evidence, and the credibility of



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United States vs. Tyndale, No.00-0113/MC


witnesses.    Taken together, these instructions limited the

members’ use of the uncharged positive result and allowed

them to consider it in the context of all the other

evidence in the case, including appellant’s testimony.

Significantly, when asked by the military judge whether

they had any objections or additions to these instructions,

neither side indicated they had either.

      Court members are presumed to follow the military

judge’s instructions.    United States v. Holt, 33 MJ 400,

408 (CMA 1991).   There is no indication in the record that

they did otherwise.   Thus, these instructions guarded

against the members’ potential misuse of this evidence.

      This Court’s holding in Graham remains valid because

this case is readily distinguishable.    In Graham, the

defense was a general denial of the charge.    Graham did not

allege any specific instance when the illegal substance was

placed in food or drink that he subsequently ingested.    50

MJ at 59.    The Court observed that there was “no fact of

consequence that a positive result on a previous

urinalysis, if resurrected at [that] trial, could rebut.”

Id.   Conversely, here, appellant’s testimony concerning the

events at Dana Point giving rise to his positive result

raised facts of consequence that could indeed be rebutted.

This is a close case, and military judges should keep in


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United States vs. Tyndale, No.00-0113/MC


mind this Court’s admonition in Graham that the “proverbial

trial within a trial” is to be avoided.    Id.   Nevertheless,

for reasons particular to this case, as stated above, the

evidence was properly admitted.

            Admission of the Polygraph Evidence

     At the time of trial, United States v. Scheffer, 44 MJ

442 (1996), was the state of the law with respect to

admissibility of polygraph evidence in military trials.    In

Scheffer, this Court held that Mil.R.Evid. 707 was

unconstitutional because the rule served as a per se

exclusion of polygraph evidence offered by an accused to

rebut an attack on his credibility, thereby infringing upon

his Sixth Amendment right to put on a defense.    Id. at 445.

While appellant’s case was pending review, the Supreme

Court of the United States reversed Scheffer, restoring the

exclusion of polygraph evidence under Mil.R.Evid. 707.

Among other things, the Court concluded that “excluding

polygraph evidence in all military trials. . . is a

rational and proportional means of advancing the legitimate

interest in barring unreliable evidence.”    It also

concluded the rule serves the interest in “[p]reserving the

court members’ core function of making credibility

determinations in criminal trials.”   United States v.

Scheffer, 523 U.S. 303, 312-13 (1998).


                             20
United States vs. Tyndale, No.00-0113/MC


     Appellant now contends that it was error for the

military judge to admit the Government’s polygraph evidence

to rebut the testimony of his own polygraph experts.     He

argues that this Court’s decision in Scheffer, which

governed the trial proceedings at the time, only applied to

exculpatory evidence arising from a polygraph examination

of an accused.   Scheffer, he asserts, left in place the

exclusion of any polygraph evidence offered by the

Government.   Appellant concedes that trial defense counsel

failed to object.   This failure to object notwithstanding,

he argues that admission of the evidence was plain error

and prays that his findings and sentence be set aside.

     In Johnson v. United States, 520 U.S. 461 (1997), the

Supreme Court was presented with a similar question

regarding the retroactive application of a procedural rule.

Johnson had been indicted for perjury.   At the time of his

trial, Circuit precedent dictated that the element of

materiality as it pertained to that offense was a question

of law for the judge to decide, and the judge had so

instructed the jury.   Like appellant, Johnson did not

object.

     While Johnson’s case was in the appellate process, the

Supreme Court decided United States v. Gaudin, 515 U.S. 506

(1995), which held that the issue of materiality must be


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United States vs. Tyndale, No.00-0113/MC


decided by the jury rather than the judge.    As in

appellant’s case, the Supreme Court changed the applicable

rule of law after trial and in the course of appellate

review.   In Johnson, however, the Supreme Court decided to

apply the new rule retroactively and determined that the

issue of the trial judge’s action under the old rule could

be reviewed for plain error.    The instant case lends itself

well to this approach.

     To prevail under a plain error analysis, appellant has

the burden of persuading this Court that:    (1) there was an

error; (2) it was plain or obvious; and (3) the error

materially prejudiced a substantial right.    United States

v. Finster, 51 MJ 185, 187 (1999); United States v. Powell,

49 MJ 460, 463-65 (1998).    Applying the Supreme Court’s

decision in Scheffer retroactively to the trial

proceedings, the first two elements are clearly satisfied.

(Moreover, the Government has conceded the first two

elements of the analysis.)    The present issue, therefore,

is whether a substantial right of appellant’s was

materially prejudiced.

     Appellant claims that this Court in Scheffer gave him

the substantial right to put on polygraph evidence without




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United States vs. Tyndale, No.00-0113/MC


rebuttal from the Government.5         Since Scheffer did not

extend to government polygraphs, the erroneous admission of

such evidence put his credibility on a heightened level of

scrutiny by the members.      Thus, he argues his rights were

materially prejudiced because it prevented the members from

considering his polygraph evidence to bolster his

credibility.

     Appellant appears to argue that he has an unqualified

right to put on evidence to support his credibility.            He

argues that he was prejudiced because the Government’s one

polygraph expert arguably canceled the testimony of his two

experts.   Yet, other than the fact that he was convicted,

he points to nothing that would support a blanket assertion

that the members reached their finding of guilt solely by

rejecting his experts and accepting the Government’s.            The

members could simply have disbelieved appellant’s account,

notwithstanding any of the polygraph evidence.          In any

event, the issue of credibility was well within the

province of the members.

     Precedent does not support the general proposition

that an accused be allowed to put his credibility in issue

without challenge from the prosecution.         Simply put,


5
 This Court’s decision in Scheffer expressly left for another day the
issue of admissibility of government-offered polygraph evidence. 44 MJ
at 445.


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United States vs. Tyndale, No.00-0113/MC


appellant has failed to carry his burden of demonstrating

that his right to support his defense by bolstering his

credibility with his polygraph evidence was materially

prejudiced by the testimony of the Government’s single

polygraph expert in rebuttal.

      Appellant’s own erroneously admitted polygraphs likely

negated any potential prejudicial error stemming from the

Government’s polygraph.       The military judge’s simultaneous

errors in admitting the two sets of polygraphs left the

panel with conflicting testimony regarding appellant’s

credibility (as well as the reliability of the polygraph,

see Scheffer).     As a result, there is no “grave doubt” that

the claimed error had an unfair prejudicial impact on the

members’ deliberations.       Kotteakos v. United States, 328

U.S. 750, 765 (1946); United States v. Young, 470 U.S. 1,

16-17 n.14 (1985); United States v. Fisher, 21 MJ 327, 328

(1986).6

                               Decision

      The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.




6
  In light of the Supreme Court’s decision in Scheffer, and its timing,
the factual basis of appellant’s case is sui generis. Moreover, the
Supreme Court having spoken, this case should not be viewed as a
statement by this Court regarding the general merits of the polygraph.


                                  24
United States v. Tyndale, No. 00-0113/MC


CRAWFORD, Chief Judge (concurring in part and in the

result):

     I concur with the lead opinion’s analysis as to Issue

II, and that no plain error occurred.    With regard to Issue

I, I agree with the result but would find the evidence

admissible, not only under Mil.R.Evid. 404(b), but also

under the common law theory of contradiction.

                             FACTS

     At trial, the prosecutor made an in limine motion to

admit the 1994 urinalysis result.    The judge would not

permit the Government to introduce the evidence as part of

its case-in-chief.   However, he held that the evidence

could be admitted if the defense of innocent ingestion

mirrored the defense at appellant’s 1994 court-martial.

     The defense theory of the case was similar to the one

at appellant’s first court-martial.    Both appellant and his

brother were at an all night, guitar-playing party.

Additionally, appellant knew of the urinalysis test on the

following Monday morning.    Appellant was drinking beer

during the course of the party, including drinks given to

him by guests.   However, he was unable to identify or

contact the people at the party who might have spiked his

drinks.    His brother also testified as to the circumstances
United States v. Tyndale, No. 00-0113/MC


surrounding the party and the inability to locate the

guests afterwards.

     At trial, appellant was asked: “Staff Sergeant, did

you knowingly use -- let me rephrase that.      Did you use

drugs?”   Appellant answered:    “No, sir.”   Later, the judge

ruled that the prosecution could introduce evidence of the

1994 test, but indicated this was not based on the cross-

examination of appellant.

     During voir dire, the trial defense counsel questioned

the members on innocent ingestion, and gave notice of an

innocent ingestion defense.     Even so, appellate defense

counsel argues that it was inappropriate to admit the 1994

test because its admission was predicated on the prosecutor

opening the door during the cross-examination of appellant.

     The Government responds that the negative inference

from the testimony introduced by the defense was that this

was an innocent ingestion case “strikingly similar” to what

happened at the first trial.

                            DISCUSSION

     The standard of review is whether the judge abused his

discretion in admitting this evidence.     United States v.

Sullivan, 42 MJ 360, 363 (1995).

     For evidence to be admissible under Mil.R.Evid.

404(b), Manual for Courts-Martial, United States (1995


                                2
United States v. Tyndale, No. 00-0113/MC


ed.), it need not fall within a category listed but must be

legally and logically relevant.

          Accordingly, the sole test under Mil.R.
          Evid. 404(b) is whether the evidence of
          the misconduct is offered for some purpose
          other than to demonstrate the accused’s
          predisposition to crime and thereby to
          suggest that the factfinder infer that
          he is guilty, as charged, because he is
          predisposed to commit similar offenses.

United States v. Castillo, 29 MJ 145, 150 (CMA 1989).

     While Reynolds is helpful, the Supreme Court in

Huddleston v. United States, 485 U.S. 681, 686-87 (1988),

stated:

          The threshold inquiry a court must make
          before admitting similar acts evidence under
          Rule 404(b) is whether that evidence is
          probative of a material issue other than
          character....

                                  * * *

          .... Article IV of the Rules of Evidence deals
          with the relevancy of evidence. Rules 401
          and 402 establish the broad principle that
          relevant evidence - evidence that makes the
          existence of any fact at issue more or less
          probable -- is admissible unless the Rules
          provide otherwise.

     Following the tests set forth in Huddleston, I would

conclude that the evidence is probative of the material

issue in this case.   Additionally, I would hold the

evidence admissible under the theory of contradiction.    The

prosecution had the right to rebut and attack the evidence



                              3
United States v. Tyndale, No. 00-0113/MC


educed by the defense as to innocent ingestion.    Under our

adversary system, each party has the right to present

favorable evidence supporting its position, and the

opponent has the right to rebut or attack that evidence.

Not only does the prior drug ingestion attack appellant’s

credibility, but it exposes the defense theory of the case.

Additionally, the impeachment in this case is as to a non-

collateral fact.

     Even though contradiction is not expressly mentioned

in the Federal Rules of Evidence, the federal courts have

informally concluded that the doctrine exists.    United

States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995);

United States v. Tarantino, 846 F.2d 1384, 1409 (D.C. Cir.

1988); United States v. Welker, 44 MJ 85 (1996); 15 FED.

RULES EVID. NEWS 59 (Apr. 1990)(“the federal common law of

‘specific contradiction’”).   However, the judge may exclude

such evidence after applying the Mil.R.Evid. 403 balancing

test.

     In this instance, the judge did not abuse his

discretion in allowing the prosecution to rebut

appellant’s testimony that he did not use any illicit drug.

Admitting the evidence promoted the proper functioning of

the adversary system.   United States v. Turner, 39 MJ 259,

267 (CMA 1994)(Crawford, J., concurring in the result).     As


                              4
United States v. Tyndale, No. 00-0113/MC


in Turner, admitting the evidence here tended to “squarely

contradict” the implications arising from appellant’s

testimony.   Id.




                             5
United States v. Tyndale, 00-0113/MC



      SULLIVAN, Senior Judge (concurring in the result):


      I cannot agree with the artificial distinctions which the

lead opinion draws between this case and United States v. Graham,

50 MJ 56 (1999).    Admittedly, in Graham, the accused did not

expressly raise a “brownie” type defense at his court-martial,

and the military judge prohibited the Government from evidencing

the successful “cake defense” raised by Graham at his earlier

court-martial.    Id. at 59, 61 nn.1 and 2.   However, in Graham, a

defense of innocent ingestion was implicitly raised by the

appellant’s exaggerated denial of knowing drug use (“no way”)

(Id. at 59-60), and the military judge specifically admitted

evidence of a prior positive urinalysis result to rebut that

defense.    Id. at 57-58.   A majority of this Court in Graham

clearly indicated that a prior positive urinalysis result was not

relevant for rebutting a defense of innocent ingestion.     Id. at

59.



      Today, a majority of this Court reaches a different

conclusion.    ___ MJ at (14).   Since I disagreed with Graham, I

agree with the Court’s change of position today.     See United

States v. Graham, supra at 61-62 (Sullivan, J., dissenting)

(prior positive urinalysis results are relevant to rebut defense

of innocent ingestion).     As I said in my dissent in Graham, the
United States v. Tyndale, No. 00-0113/MC

jury was entitled to know that the appellant was in reality

asserting that “he was struck by lightning twice.”   Id. at 62.



     On the second issue, I find no plain error in the admission

of the Government’s polygraph evidence in this case, although I

disagree with the lead opinion’s citation of United States v.

Powell, 49 MJ 460 (1998).   See generally Johnson v. United

States, 520 U.S. 461 (1997); United States v. Olano, 507 U.S. 725

(1993).   Clearly, error occurred in this case under Mil. R. Evid.

707(a), Manual for Courts-Martial, United States (1995 ed.).     It

states: “Notwithstanding any other provision of law, the results

of a polygraph examination, the opinion of a polygraph examiner,

or any reference to an offer to take . . . a polygraph

examination shall not be admitted into evidence.   See United

States v. Scheffer, 523 U.S. 303 (1998).   However, since both

parties admitted contradictory polygraph testimony, appellant has

failed to show material prejudice.   See United States v.

Tanksley, 54 MJ 169, 173 (2000); United States v. Wilson, 54 MJ

57, 60-62 (2000) (Sullivan, J., concurring in part and dissenting

in part).   Accordingly, I join in affirming this case.




                                 2
United States v. Tyndale, No. 00-0113/MC


    GIERKE, Judge, with whom EFFRON, Judge, joins (dissenting):

    I disagree with the resolution of Issue I in the lead

opinion.    As the lead opinion recognizes, the first prong of

United States v. Reynolds, 29 MJ 105, 109 (CMA 1989), requires

that the evidence reasonably support a finding by the court

members that the uncharged act occurred.          In this case, there was

no competent evidence before the members that appellant

previously used methamphetamine.           The 1994 laboratory report was

admitted as Appellate Exhibit V but never presented to the

members.    The only evidence that appellant tested positive in

1994 was Major Glazier’s testimony.          His testimony falls short on

two grounds: (1) it was hearsay, because he was testifying about

the conclusions of a laboratory technician who did not testify

and whose report was not before the court members; and (2) he was

not qualified to give expert testimony interpreting the

laboratory report.      Thus, as the lead opinion recognizes, the

foundational requirements for proof of prior use of

methamphetamine were not met.        ___ MJ at (9).

    To the extent that this Court has recognized the “doctrine of

chances,” we have insisted that it be used only when there is a

factual predicate demonstrating that the subsequent ingestion was

under circumstances sufficiently similar to the first ingestion

to justify an inference that the first ingestion was knowing.

See United States v. Matthews, 53 MJ 465, 470 (2000).           In other

words, the similarity does not flow from the results of the

urinalysis, but from the circumstances surrounding the ingestion.
United States v. Tyndale, No. 00-0113/MC


In the present case, there was not a sufficient factual predicate

for the doctrine of chances, because there was no competent proof

of the first and most significant point of similarity under the

doctrine of chances, i.e., proof of prior use of methamphetamine.

    Furthermore, to the extent that this Court applies the

doctrine of chances, we must require that the court members be

properly instructed on its application.       The lead opinion

recognizes that the only justification for admitting evidence of

the 1994 positive urinalysis was to make sense of the doctrine of

chances.      ___ MJ at (10).     However, the military judge’s

instructions were blatantly inadequate to guide the members in

their application of the doctrine of chances.       The instructions

contain absolutely no mention of the doctrine of chances.         The

instructions merely gave the members a laundry list of

permissible uses under Mil.R.Evid. 404(b): to prove knowledge, to

prove intent, or to rebut appellant’s claim of innocent

ingestion.    See United States v. Levitt, 35 MJ 114, 119-20 (CMA

1992) (“Merely reciting the purposes allowed by Mil.R.Evid.

404(b) without identifying the precise purpose for which the

evidence may be used in a particular case will not suffice.”);

United States v. Harrison, 942 F.2d 751, 759 (10th Cir. 1991)

(“court must identify a specific reason for admitting the

evidence, rather than merely reciting the language of Rule

404(b).”); United States v. Cortijo-Diaz, 875 F.2d 13, 15-16 (1st

Cir. 1989) (expressing dissatisfaction with “laundry-list”

instruction); United States v. Rivera, 837 F.2d 906, 912-13 (10th


                                      2
United States v. Tyndale, No. 00-0113/MC


Cir. 1988) (“laundry list” of purposes allowed under Rule 404(b)

not sufficient).

    The instructions gave no guidance for determining how a prior

urinalysis and appellant’s explanation had any bearing on the

charges.    They gave no guidance regarding the high degree of

similarity between the two incidents that is required to invoke

the doctrine of chances in rebuttal to a claim of innocent

ingestion.    See United States v. Martinez, 40 MJ 426, 431 (CMA

1994) (military judge must tailor instructions to facts of case);

Cortijo-Diaz, supra at 16 (“‘instruction must have left the jury

wondering how the [evidence] could have a bearing on’ the various

items of Rule 404(b)”).       In spite of the boilerplate admonition

against concluding that appellant “is a bad person or has

criminal tendencies,” the instructions did not preclude the

members from concluding that appellant knew he was ingesting

methamphetamines on the date charged because he had ingested them

in 1994.    In my view, the military judge’s instructions left the

members totally unguided in their consideration of this highly

prejudicial evidence.

    Finally, I disagree with the view expressed in the lead

opinion that the military judge’s limiting instructions regarding

the 1994 incident guarded against the member’s misuse of this

evidence.    ___ MJ at (19).     In my view, the instructions

compounded the error by erroneously informing the members that

there was competent “[e]vidence that on 14 January of 1994, the

accused submitted a urine sample that subsequently tested


                                      3
United States v. Tyndale, No. 00-0113/MC


positive for methamphetamine,” when in fact that was no such

evidence.

    I would reverse the decision below and set aside the findings

and sentence.




                                      4
