                        UNITED STATES, Appellee

                                     V.

                         Jason W. HALL, Airman
                       U.S. Air Force, Appellant


                               No. 01-0418


                          Crim. App. No. 33476



       United States Court of Appeals for the Armed Forces

                        Argued October 25, 2001

                           Decided May 2, 2002

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

                                  Counsel

For Appellant: Major Maria A. Fried (argued); Lieutenant Colonel
   Beverly B. Knott and Lieutenant Colonel Timothy W. Murphy
   (on brief); Colonel James R. Wise and Major Stephen P. Kelly.

For Appellee: Captain Christa S. Cothrel (argued); Colonel
   Anthony P. Datillo and Major Lance B. Sigmon (on brief);
   Major Bryan T. Wheeler and Major Linette I. Romer.

Military Judge:    Gregory E. Michael


  This opinion is subject to editorial correction before final publication.
United States v. Hall, No. 01-0418/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted appellant, pursuant to his

pleas, of assault consummated by a battery (two specifications)

and dereliction of duty, in violation of Articles 128 and 92,

Uniform Code of Military Justice, 10 USC §§ 928 and 892,

respectively.     Contrary to his pleas, the court-martial, composed

of officer and enlisted members, convicted appellant of unlawful

distribution of anabolic steroids, in violation of Article 112a,

UCMJ, 10 USC § 912a.      The adjudged and approved sentence provides

for confinement for twelve months and reduction to the lowest

enlisted grade.     The Court of Criminal Appeals affirmed the

findings and sentence.      54 MJ 788 (2001).    This Court granted

review of the following issue:

      WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS
      DISCRETION WHEN IT HELD THAT ALTHOUGH THE MILITARY JUDGE
      ERRED IN HIS DECISION NOT TO ADMIT A1C GILBERT’S TESTIMONY,
      THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
For the reasons set out below, we affirm.

                            Factual Background

      The factual issue in this case was entrapment.       The excluded
testimony of Airman First Class (A1C) Richard Gilbert was offered

in support of appellant’s entrapment defense.

      Senior Airman (SrA) Donald Stachum, an Air Force Security

Policeman, testified that he and appellant lived in the same

dormitory.    Both Stachum and appellant were interested in weight

lifting.    They had conversations about certain professional

weight lifters who used steroids and the effects they

experienced.    Appellant showed Stachum a “steroid handbook” and

told him that he had learned a lot about steroid use from the



                                        2
United States v. Hall, No. 01-0418/AF


book.   Appellant offered to loan the book to Stachum, and Stachum

accepted.

      Stachum testified that sometime in mid-June 1998, appellant

told him that he was “really cool” and offered to “connect [him]

with a source.”     Stachum testified that he never asked appellant

to sell steroids to him.       Stachum reported appellant’s offer to

an agent of the Office of Special Investigations (OSI).

      Stachum testified that around the end of June, appellant

told him that he had a friend who might be able to obtain some

steroids for him.     Stachum reported this conversation to the OSI.

The OSI told Stachum to keep them informed.

      Around the first of July, appellant told Stachum that his

friend was probably willing to sell the steroids, but he was

hesitant and did not want to get into trouble.       Stachum told

appellant to let him know if the friend wanted to make the sale.

Stachum reported this conversation to the OSI.       On about July 8,

the OSI arranged for Stachum to make a controlled buy.

      Stachum testified that on the afternoon of July 8, he asked

appellant if he had talked to his friend.       Appellant responded

that he would talk to his friend on the following morning.        At

about 4:30 p.m. on July 9, appellant told Stachum, “[I]f you want

to buy the steroids, it has to happen at 1900 hours tonight.”

Appellant told Stachum that “[h]is friend was extremely paranoid,

wanted to get rid of it, and didn’t want to use it anymore.”

Stachum testified that he tried to postpone the transaction until

the following morning, but appellant insisted “no, if it’s going

to happen, it has to happen tonight.”       Appellant wanted to

conduct the transaction in the dormitory, and he wanted Stachum


                                        3
United States v. Hall, No. 01-0418/AF


to “take a shot of the steroids to prove that [he] wasn’t going

to bust him.”

      The OSI told Stachum that the transaction could not be in

the dormitory, because they would be unable to keep constant

surveillance.     Stachum told appellant that he did not want to

conduct the transaction on base, that he did not trust him, and

that he felt more comfortable off base.

      Stachum testified that appellant told him he wanted to use

the steroids with him for a week.           Stachum replied that he would

bring them to the dormitory but would not leave them in his

dormitory room.     Appellant reiterated that he wanted Stachum to

“take a shot” immediately after the transaction.          Stachum

testified that appellant told him one of the conditions for the

transaction was that appellant could use them.

      The transaction ultimately took place off-base, behind a

church, where Stachum purchased the steroids with $120 in marked

money.   As Stachum and appellant drove toward the base, Stachum

signaled the OSI.     The OSI surrounded their vehicle, ordered both

appellant and Stachum to get out of the vehicle, and handcuffed

them.

      A1C Phillip Hillhouse, a close friend of appellant, was the

source of the steroids.       He testified that he purchased them in

his hometown.     He testified that when he told appellant he

intended to buy some steroids, appellant indicated that “if he

had money, he would probably want me to buy some.”          Hillhouse

qualified the last statement, testifying, “I don’t have the 100%

prove [sic] on that though.”




                                        4
United States v. Hall, No. 01-0418/AF


      Hillhouse had only “basic knowledge” about steroid use, but

found that appellant was “very knowledgeable.”            Appellant

verified that Hillhouse had purchased the correct size syringes,

and he showed Hillhouse how to correctly inject himself with the

steroids.

      After using steroids for about two-and–a-half weeks,

Hillhouse became “totally disgusted” with what he was doing to

himself and decided to get rid of them.            He offered to sell them

to appellant.     According to Hillhouse, “obviously he wanted

them.”    Appellant offered to buy them and suggested a price of

$120.    Hillhouse agreed.

      Appellant did not pay Hillhouse for the steroids

immediately.    Hillhouse did not know how appellant intended to

obtain the money to buy the steroids, and he did not know if

appellant intended to sell them.            He understood that appellant

wanted the steroids for personal use.

      Appellant admitted being knowledgeable about steroids.           He

also admitted using steroids before joining the Air Force and

admitted that he did not reveal his steroid use on his enlistment

application.

      Appellant testified that he met Stachum shortly after he

moved into the security police dormitory.            During the first month

of his acquaintance with Stachum, they talked about weight

lifting and body building, including use of steroids.            Appellant

testified that about a month after he moved into the dormitory,

Stachum asked him if he “could hook him up with some drugs.”

Appellant responded that he did not know where to obtain them.

Appellant testified that after that conversation, Stachum asked


                                        5
United States v. Hall, No. 01-0418/AF


him about obtaining steroids in “probably almost every

conversation.”     He testified that Stachum’s initial requests did

not bother him, but after a while, they became annoying, because

he “had already told him no.”

      Appellant testified that after Hillhouse told him that he

wanted to get rid of his steroids, appellant told Stachum that he

could get him some steroids if he wanted them.      Asked why he made

the offer to Stachum, appellant responded, “To get him off my

back and to do a favor for two friends.”

      On cross-examination, appellant corroborated Stachum’s

testimony that he insisted on completing the transaction on the

evening of July 9.      He admitted offering to “front part of the

cost” of the drugs when Stachum said he did not have enough

money.   He admitted telling Hillhouse that he intended to share

the steroids with Stachum.

      Regarding his intent to share the steroids, appellant

testified on cross-examination as follows:

            Q. Okay. And before you left, you told [Hillhouse]
            that you and Donnie [Stachum] were going to use the
            drugs that night? Isn’t that true?

            A.   Yes, ma’am.

            Q. Because you intended on using those drugs, didn’t
            you?

            A.   Yes, ma’am.

            Q. And, in fact, part of the deal    that you were
            getting out of this is that Airman   Stachum would keep
            the drugs for you, and he would be   able to provide them
            for you whenever you wanted to use   them. Isn’t that
            true?

            A.   For one week, ma’am.




                                        6
United States v. Hall, No. 01-0418/AF


            Q. Right. And Airman Stachum would be the one who
            would actually have to have possession of them, isn’t
            that true?

            A.   Yes, ma’am.

            Q. So, then if for some reason the drugs were found,
            Airman Stachum--they would be in Airman Stachum’s
            possession, isn’t that true?

            A.   Yes, ma’am.

            Q. And the whole time you intended on using those
            drugs. Isn’t that true?

            A.   Yes, ma’am.

            Q. So, part of the reason why you sold those drugs to
            Airman Stachum was so that you could use them. Isn’t
            that true?

            A. Yes, ma’am.

                                            *   *   *

            Q. And, in fact, after          the transaction had finally
            taken place, on the way         back to the gate, you told
            Airman Stachum that you         guys were going to use the
            drugs that night. Isn’t         that true?

            A.   Yes, ma’am.

            Q. Because that is the reason why you wanted this to
            go down was so you could use the drugs, isn’t that
            true?

            A.   Yes, ma’am.

                                            *   *   *

            Q. Okay. Now, when you obtained those drugs from
            Airman Hillhouse, you were taking a pretty big risk,
            weren’t you?

            A.   Yes, ma’am.

            Q.   Because you knew [Stachum] was a cop, right?

            A.   Yes, ma’am.

            Q. And you did it because you were going to use those
            drugs, right?

            A.   In part, yes, ma’am.



                                        7
United States v. Hall, No. 01-0418/AF


      A1C Richard Gilbert, appellant’s friend and co-worker, was

called as a defense witness.        At an evidentiary hearing conducted

in accordance with Article 39(a), UCMJ, 10 USC § 839(a), the

defense established that Gilbert would testify as follows:

            I heard Airman Stachum ask Airman Hall, “can you hook
            me up.” And that’s all I heard. Then Airman Hall came
            out and said, “he keeps bugging me for steroids.”

When asked when this conversation occurred, Gilbert responded,

“Can’t be specific, but I’d say between March and April.”

Gilbert also testified that appellant mentioned three or four

times that Stachum kept “bugging him for steroids.”        In response

to a question from the military judge about the context of the

conversation between Stachum and appellant, Gilbert testified,

“That’s all I remember hearing, sir.”

      The military judge sustained a prosecution objection to

Gilbert’s testimony.      He ruled that the statement about “hooking

him up” was too remote and not trustworthy because Gilbert did

not hear what else was said.        Regarding appellant’s complaint

that Stachum was “bugging” him for steroids, the military judge

ruled that it was “self-serving hearsay.”

      The Court of Criminal Appeals held that the military judge

erred.   The court held that Gilbert’s testimony that Stachum

asked appellant to “hook him up” was relevant to show that the

suggestion to commit the offense originated with Stachum and to

contradict Stachum’s testimony that he never asked appellant to

obtain drugs for him.      The court further held that appellant’s

complaints about Stachum “bugging” him were admissible as prior

consistent statements under Mil.R.Evid. 801(d)(1)(B) and as

evidence of appellant’s state of mind under Mil.R.Evid. 803(3),


                                        8
United States v. Hall, No. 01-0418/AF


Manual for Courts-Martial, United States (2000 ed.).1            The court

held, however, that the error was harmless because “appellant’s

own testimony established beyond a reasonable doubt not just that

he had a predisposition to use steroids, but also that he had a

predisposition to distribute the steroids.”            The court reasoned:

            Transferring the steroids from A1C [Hillhouse] to SrA
            Stachum was the means by which appellant would
            accomplish his goal--getting steroids for his own
            personal use. He even offered to front SrA Stachum $20
            of the purchase price to make sure SrA Stachum made the
            purchase.[2]

54 MJ at 792.

      One judge dissented from the lower court’s holding of

harmless error, concluding, as did the majority, that the

excluded testimony of A1C Gilbert went to the heart of

appellant’s entrapment defense.             The dissenting judge concluded

that the evidence showed appellant’s predisposition to possess

and use steroids, but did not establish his predisposition to

distribute them.     The dissenting judge was not satisfied beyond a

reasonable doubt that the erroneous suppression of Gilbert’s

testimony was harmless.       Id. at 793.
                                 Discussion

      Before this Court, the Government has not challenged the

correctness of the decision below regarding the admissibility of

Gilbert’s testimony.      Thus, the sole issue before us is whether




1
 All cited provisions from the Manual are unchanged from those in
effect at the time of appellant’s court-martial.
2
 The court below erroneously referred to A1C Gilbert as the
source of the steroids instead of A1C Hillhouse.



                                        9
United States v. Hall, No. 01-0418/AF


the court below correctly determined that any error in excluding

Gilbert’s testimony was harmless beyond a reasonable doubt.

      Appellant asserts that because this case involved a swearing

contest between Stachum and himself, excluding evidence relating

to Stachum’s credibility was an unconstitutional denial of the

right to present an entrapment defense.      He argues that the

excluded portion of Gilbert’s testimony would have corroborated

his entrapment defense, and that there was a reasonable

likelihood that Gilbert’s testimony would have tipped the balance

in his favor.

      The Government argues that the exclusion of Gilbert’s

testimony was an evidentiary error that did not prevent appellant

from presenting his entrapment defense.      The Government further

argues that appellant’s own testimony “provided such clear

evidence as to his predisposition that it virtually eliminated

any entrapment defense.”       Thus, the Government asserts that, even

if the error was of constitutional magnitude, it was harmless

beyond a reasonable doubt.

      We review the lower court’s harmless-error analysis de novo.
See United States v. Grijalva, 55 MJ 223, 228 (2001) (de novo

review of constitutional error); United State v. Gunkle, 55 MJ

26, 30 (2001) (de novo review of nonconstitutional error).        For

constitutional errors, the Government must persuade us that the

error was harmless beyond a reasonable doubt.      United States v.

Adams, 44 MJ 251, 252 (1996), citing Chapman v. California, 386

U.S. 18, 24 (1967).      For nonconstitutional errors, the Government

must persuade us that the error did not have “a substantial




                                        10
United States v. Hall, No. 01-0418/AF


influence on the findings.”       Id., citing Kotteakos v. United

States, 328 U.S. 750, 764-65 (1946).

      Entrapment is an affirmative defense.      RCM 916(g), Manual,

supra, provides: “It is a defense that the criminal design or

suggestion to commit the offense originated in the Government and

the accused had no predisposition to commit the offense.”       In

United States v. Whittle, 34 MJ 206, 208 (CMA 1992), this Court

explained the burden of proof in entrapment cases as follows:

                 The defense has the initial burden of going
            forward to show that a government agent originated the
            suggestion to commit the crime. Once the defense has
            come forward, the burden then shifts to the Government
            to prove beyond a reasonable doubt that the criminal
            design did not originate with the Government or that
            the accused had a predisposition to commit the offense,
            United States v. Vandzandt, [14 MJ 332, 342-43 (CMA
            1982)], “prior to first being approached by Government
            agents.” Jacobson v. United States, [503 U.S. 540, 549
            (1992)].

      In United States v. Howell, 36 MJ 354, 359-60 (CMA 1993),

this Court, quoting United States v. Stanton, 973 F.2d 608, 610

(8th Cir. 1992), explained that the first element of entrapment

is an inducement by government agents to commit the crime.       This

Court adopted the Stanton definition of an “inducement”:
            Inducement is government conduct that “creates a
            substantial risk that an undisposed person or otherwise
            law-abiding citizen would commit the offense.” . . .
            Inducement may take different forms, including
            pressure, assurances that a person is not doing
            anything wrong, “persuasion, fraudulent
            representations, threats, coercive tactics, harassment,
            promises of reward, or pleas based on need, sympathy,
            or friendship.” . . . Inducement cannot be shown if
            government agents merely provide the opportunity or
            facilities to commit the crime or use artifice and
            strategem.




                                        11
United States v. Hall, No. 01-0418/AF


(Citations and emphasis omitted.)            This Court also explained that

a government agent’s repeated requests for drugs “do not in and

of themselves constitute the required inducement.”           Id. at 360.

      In United States v. Wind, 28 MJ 381, 382 (CMA 1989), this

Court observed that evidence of drug possession or use to show

predisposition to sell drugs is “questionable,” because “[m]any

people who possess or use drugs never sell them.”           However, this

Court has stopped short of holding that possession or use of

drugs is never, under any circumstances, relevant to show

predisposition to distribute drugs.

      A ruling excluding evidence is not constitutional error

unless the evidence is “material or vital.”           United States v.
Ndanyi, 45 MJ 315, 321-22 (1996); United States v. Garcia, 44 MJ

27, 31, cert. denied, 519 U.S. 865 (1996).            Exclusion of evidence

impeaching a key witness may be constitutional error if there is

a “reasonable likelihood that the excluded evidence may have

tipped the credibility balance in appellant’s favor.”           United

States v. Bins, 43 MJ 79, 87 (1995); see also United States v.

Dorsey, 16 MJ 1, 7 (CMA 1983) (exclusion of evidence of motive to
lie is constitutional error).           The lower court treated the error

in this case as constitutional error.           We need not decide whether

the lower court correctly characterized the error, because we are

satisfied that the error was harmless beyond a reasonable doubt.

      We evaluate prejudice from an erroneous evidentiary ruling

under the four-pronged test set out in United States v. Weeks, 20

MJ 22, 25 (CMA 1985).      We weigh (1) the strength of the

Government’s case; (2) the strength of the defense case; (3) the




                                        12
United States v. Hall, No. 01-0418/AF


materiality of the evidence in question; and (4) the quality of

the evidence in question.

      On the issue of entrapment, the Government’s evidence was

strong.   The factual issue raised by appellant’s entrapment

defense was whether appellant was predisposed to facilitate a

transfer of the drugs from Hillhouse to Stachum in order to

ensure a no-cost supply of steroids for his own use.       In this

case, the Government was not required to show that appellant was

generally predisposed to sell drugs, but only that he was

predisposed to facilitate this particular transaction.

Hillhouse’s testimony established that appellant was interested

in obtaining steroids but had no money to buy them.       Hillhouse’s

testimony also established that appellant offered to dispose of

the steroids for him.      Appellant’s testimony indicated that he

resisted whatever requests Stachum may have made for steroids,

because he had no readily available source until Hillhouse

approached him.     Appellant’s testimony on cross-examination

established that appellant saw Hillhouse’s desire to dispose of

the steroids as an opportunity to obtain a source for his own use

without having to pay for them.

      In light of appellant’s own testimony establishing his

predisposition to facilitate the transfer of Hillhouse’s steroids

to Stachum, which was corroborated by Hillhouse’s testimony and

the uncontested portions of Stachum’s testimony, we hold that any

error in excluding portions of Gilbert’s testimony was harmless

beyond a reasonable doubt.       Thus, we hold that the court below

did not err.




                                        13
United States v. Hall, No. 01-0418/AF


                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                        14
United States v. Hall, No. 01-0418,AF


    SULLIVAN, Senior Judge (concurring in part and in the
    result):


    To the extent that the majority suggests we are precluded

from looking at the holding of the Court of Criminal Appeals

that error occurred, I disagree.   We granted review of the

question of harmless error, which under our precedent allows us

to look at the question of error   See United States v. Williams,

41 MJ 134, 135 n.2 (CMA 1994), citing Christianson v. Colt

Industries Operating Corp., 486 U.S. 800, 817 (1988).   Moreover,

we have not adopted a strict appellate waiver approach when an

appellant fails to challenge an adverse Court of Criminal

Appeals holding in this Court.   See generally Eugene R. Fidell,

Guide to the Rules of Practice and Procedure for the United

States Court of Appeals for the Armed Forces, 34-37 (9th ed.

2000)(recognizing this Court’s practice of specifying issues not

assigned by appellate defense counsel);   see also United States

v. Johnson, 42 MJ 443, 446 (1995).   Finally, I am not convinced

that the law of the case, rather than appellate forfeiture with

a plain error exception, is the proper approach to these

questions.   See generally United States v. Castillo, 179 F.3rd

321, 326-27 (5th Cir. 1999); Crocker v. Piedmont Aviation, Inc.,

49 F.3rd 735, 739-40 (D.C. Cir. 1995).



    In my view, error occurred in this case for the reasons

posited by the Court of Criminal Appeals.   Nevertheless, I agree
United States v. Hall, No. 01-0418/AF

with the majority that such error was harmless beyond a

reasonable doubt.

   Whether Airman Stachum induced appellant to commit the

charged offense, and Stachum’s credibility in this regard, were

not outcome determinative issues in this case.   As pointed out

by the majority, an additional requirement for a successful

entrapment defense was a showing of an absence of a

predisposition on appellant’s part to commit the charged

offense.   See RCM 916(g), Manual for Courts-Martial, United

States (1998 ed.).

   I agree with the majority opinion that there was

overwhelming evidence of appellant’s predisposition to acquire

drugs from A1C Hillhouse in this case.   In these circumstances,

there was no reasonable possibility that the members would find

the second prerequisite of this defense existed in appellant’s

case.   Accordingly, I conclude that error in excluding defense

evidence on Stachum’s purported inducement of appellant and

Stachum’s credibility was harmless beyond a reasonable doubt.

See United States v. Monroe, 42 MJ 398, 402-03 (1995).




                                 2
United States v. Hall, No. 01-0418/AF



     EFFRON, Judge (dissenting):


     As the Court of Criminal Appeals noted, the military judge

erroneously excluded testimony that went “directly to the heart

of the appellant’s entrapment defense.”    54 MJ 788, 792 (2001).

The court concluded that the error was not prejudicial under

Article 59(a), UCMJ, 10 USC § 859(a).    Id.   The sole issue

before us in the present appeal is the question of prejudice.

The majority opinion concludes that any error was harmless

beyond a reasonable doubt.   __ MJ at (12).    I respectfully

dissent.


     As our Court has emphasized, “an accused has a tough row to

hoe to secure acquittal by virtue of entrapment because ‘[a]

law-abiding person is one who resists the temptations, which

abound in our society today, to commit crimes.’”     United States

v. LeMaster, 40 MJ 178, 180 (CMA 1994) (quoting United States v.

Whittle, 34 MJ 206, 208 (CMA 1992)).    That task becomes

particularly daunting if the military judge denies the accused

the opportunity to present evidence that goes “to the heart” of

his or her entrapment defense.


     In an entrapment case, the determination as to whether an

accused was entrapped is a subjective inquiry that “must be

resolved by the fact finder.”    United States v. Vanzandt, 14 MJ
United States v. Hall, No. 01-0418/AF


332, 343 (CMA 1982).   The issue of entrapment “involves

balancing the accused’s resistance to temptation against the

amount of government inducement.”    Id. at 344.   Because this is

a factual issue, our resolution of the present appeal does not

turn on whether we would believe appellant’s version of the

events, see United States v. Wells, 52 MJ 126, 131 (1999), or

whether the evidence was sufficient as a matter of law.     Compare

Jackson v. Virginia, 443 U.S. 307, 319 (1979).     The issue we

must resolve is “whether the error had a substantial influence

on the findings.”   United States v. Adams, 44 MJ 251, 252 (1996)

(articulating standard for nonconstitutional errors) (citations

omitted); see also United States v. Jefferson, 13 MJ 1, 4 (CMA

1982) (test for harmless error under constitutional standard is

“whether ‘evidence in the record of trial demonstrates beyond a

reasonable doubt that the unadmitted testimony would not have

tipped the balance in favor of the accused and the evidence of

guilt is so strong as to show no reasonable possibility of

prejudice.’”) (citation omitted).


     The majority opinion contends that the Government’s

evidence was “strong” on the question of entrapment, relying

principally on the claim that “Hillhouses’s testimony

established that appellant was interested in obtaining steroids

but had no money to buy them,” to show predisposition.     __ MJ at



                                 2
United States v. Hall, No. 01-0418/AF


(13).   The majority opinion also relies on the contention that

appellant’s testimony demonstrates that he resisted Stachum’s

repeated requests for steroids only because he did not have a

source to supply Stachum until Hillhouse approached him.   Id.

The evidence, however, raises more than a reasonable doubt on a

number of key points.


     First, with respect to Hillhouse, who testified under a

grant of immunity, his testimony is quite ambiguous on the issue

of whether -- at the time of the controlled buy or any other

time -- appellant was interested in buying steroids but had no

money to do so.   On direct examination, Hillhouse testified as

follows:


           Q: Before you left for Washington, did you
           ever have a conversation with the accused
           about steroids?

           A: Quite frequently.

           Q: What were these conversations about?

           A: They were just basic questions and basic
           conversations to the effect that do you know
           the pros and cons--pretty much what they
           [steroids] can do for you.

                             *    *   *

           Q: Did you ever have a conversation with him
           about what you were going to do when you go
           to Washington?

           A: The only thing I would be able to recall
           is I would attempt to purchase them


                                  3
United States v. Hall, No. 01-0418/AF


            [steroids]. I by no means knew for sure if
            I was going to.

            Q: So, you told the accused that you were
            going to try to buy some steroids?

            A: Yes.

            Q: And what did he say in response to that?

            A: Really not too much. And if he had
            money, he would probably want me to buy
            some. I don’t have the 100% prove [sic] on
            that though.


(Emphasis added.)     This testimony does not establish beyond a

reasonable doubt that appellant lacked sufficient funds to

purchase steroids.      At most, it indicates that appellant may not

have had the necessary funds prior to the time Hillhouse

purchased the steroids on June 16 while in Washington state.

The testimony does not directly address appellant’s ability to

purchase the steroids on July 9, the date of the controlled buy.∗


      Second, appellant’s testimony does not establish beyond a

reasonable doubt that his resistance to Stachum’s inducement was

based solely on the fact that he did not have a source to



∗
  It is noteworthy as well that appellant did not testify as to his ability
(or inability) to pay the $120 to purchase Hillhouse’s leftover steroids, nor
did trial counsel inquire about this matter on cross examination. Moreover,
trial counsel did not proffer any other evidence on this point. Equally
telling is the fact the Government’s brief does not rely on appellant’s
purported inability to pay to show predisposition. See Government Brief at
15 (arguing only that appellant was motivated by a desire “to obtain
[steroids] for his own use”). As defense counsel noted in his closing
argument at trial, “There’s no evidence that Airman Hall couldn’t have gone
out and bought those steroids just for himself.”


                                      4
United States v. Hall, No. 01-0418/AF


fulfill Stachum’s request.   Although such a conclusion is one

possible inference that could be drawn from the evidence,

appellant’s testimony does not establish this fact beyond a

reasonable doubt.   The Government did not prove that, absent

Stachum’s three-month campaign of inducement, or prior thereto,

appellant nonetheless would have engaged in the criminal conduct

for which he was convicted, illegal distribution of steroids, in

order to obtain steroids for his own personal use.   See Jacobson

v. United States, 503 U.S. 540, 549 n.2 (1992).


     Appellant’s admission that he sold the steroids in part so

that he could use them is not dispositive.   See United States v.

Eckhoff, 27 MJ 142, 144 (CMA 1988) (holding “that a profit

motive does not automatically negate an entrapment defense”).

Accordingly, a drug user who is motivated in part by a desire to

use drugs, or who otherwise benefits from a transaction, does

not forfeit the entrapment defense.   The prosecution must still

demonstrate that such a person would have acted in the absence

of the Government’s inducement or conceived the idea “prior to

first being approached by Government agents.”   United States v.

Howell, 36 MJ 354, 358 (CMA 1993) (quoting Jacobson, supra at

549) (emphasis added).


     Consistent with this requirement, we have acknowledged that

profit motive may be considered as one factor in determining


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United States v. Hall, No. 01-0418/AF


whether an accused was predisposed to commit the charged crime,

but we have not held that the presence of such motive precludes

the defense.   See, e.g., United States v. Cooper, 35 MJ 417, 425

(CMA 1992) (profit motive identified as one of five factors to

show predisposition); United States v. Bell, 38 MJ 358, 360 (CMA

1993) (“unquestionably, the entrapment defense was raised by

appellant’s own testimony,” though appellant profited from

transaction); United States v. Bailey, 21 MJ 244, 245 (CMA 1986)

(guilty plea improvident and entrapment defense raised where

appellant gained profit from illegal distribution).   In Howell,

supra, we relied upon federal civilian opinions that have

similarly identified profit motive as one among several factors

that may be considered when assessing predisposition.   See

United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir. 1983)

(identifying five “factors relevant in determining

predisposition,” including character, whether the Government

first suggested the illegal conduct, and profit motive); United

States v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992) (same); see

also United States v. Martinez, 122 F.3d 1161, 1163 (9th Cir.

1997) (holding “none of [five] factors is controlling” as to

predisposition, including profit motive); United States v.

Miller, 71 F.3d 813, 816 (11th Cir. 1996) (noting prior decisions

have “refused to enumerate a list of factors to address when a




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United States v. Hall, No. 01-0418/AF


defendant’s predisposition is at issue because the inquiry ...

is necessarily ... fact-intensive”).



       The predicate factual issue in this case is whether the

Government’s inducement set off the chain of events which led to

appellant’s participation in the sale of steroids on July 9, the

resolution of which includes assessing whether appellant

sufficiently “resist[ed] ... temptation against the amount of

government inducement” to warrant acquittal.    Vanzandt, 14 MJ at

344.    The Court of Criminal Appeals held that Gilbert’s

testimony was admissible as a prior consistent statement to

rebut the Government’s attack on appellant’s truthfulness on

cross-examination, as evidence of appellant’s state of mind, and

to impeach Stachum, who claimed never to have asked appellant

for steroids.    All of these reasons constitute factors that bear

directly upon the issue of appellant’s predisposition.      As the

members were presented only with the testimony of appellant and

Stachum on the entrapment question, resolution of this question

turned entirely on credibility.    Under these circumstances, the

exclusion of Airman Gilbert’s testimony was prejudicial because

it deprived the defense of the opportunity to have the

credibility question resolved by the members.




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