                         UNITED STATES, Appellee

                                         v.

                       Vangle S. HARDISON, Seaman
                          U.S. Navy, Appellant


                                  No. 06-0064

                        Crim. App. No. 200200753

       United States Court of Appeals for the Armed Forces

                         Argued October 16, 2006

                        Decided January 25, 2007


BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                     Counsel


For Appellant: Captain Rolando R. Sanchez, USMC (argued).

For Appellee: Lieutenant Justin E. Dunlap, JAGC, USN (argued);
Commander Charles N. Purnell II, JAGC, USN, and Major Wilbur
Lee, USMC (on brief).



Military Judge:    J. V. Garaffa



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hardison, No. 06-0064/NA


    Judge BAKER delivered the opinion of the Court.

    Appellant was a seaman assigned to the Funeral and Honor

Guard detail, Naval Submarine Base, Kings Bay, Georgia.        Before

a special court-martial composed of officer members Appellant

pleaded not guilty to a single specification of using marijuana

in violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000).       Appellant was convicted and

sentenced to a bad-conduct discharge.      The convening authority

approved the sentence and the United States Navy-Marine Corps

Court of Criminal Appeals affirmed.      United States v. Hardison,

No. 200200753, 2005 CCA LEXIS 258, at *6, 2005 WL 2105409, at *3

(N-M. Ct. Crim. App. Aug. 29, 2005) (unpublished).      Upon

Appellant’s petition we granted review of the following issue:

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
     ERRED BY CONCLUDING THAT THE MILITARY JUDGE HAD NOT
     COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF APPELLANT’S
     PRESERVICE DRUG USE AND A SERVICE WAIVER FOR THAT DRUG USE.

     We hold that the Navy-Marine Corps Court of Criminal

Appeals erred in concluding that the military judge had not

committed plain error in admitting the evidence.      Admissible

evidence in aggravation must be “directly related” to the

convicted crime.   There was no such nexus here and the resulting

admission prejudiced Appellant’s substantial rights.




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United States v. Hardison, No. 06-0064/NA


                              BACKGROUND

        Appellant joined the Navy pursuant to a drug waiver,

permitting her to enlist despite admission of preservice drug

use.    Specifically, at the time of enlistment, she admitted to

having used marijuana in the six months prior to entering the

Navy.    On April 30, 2001, approximately three years into her

service commitment, Appellant was administered a random

urinalysis test.    The test revealed evidence of recent marijuana

use.

        Appellant was court-martialed before members and convicted.

At sentencing the Government’s brief sentencing argument focused

on the various enlistment documents in which Appellant had both

admitted to past drug use and had pledged not to use drugs in

the Navy.1    Trial counsel’s specific argument to the members was

that in assessing her sentence they should consider the fact




1
    The three enlistment documents were:

DD Form 1966/2: In response to Question 26 which inquired if
Appellant had “ever tried or used or possessed . . . cannabis
([including marijuana]),” Appellant answered in the affirmative.

DD Form 1966 Annex: In answering Question 8 in Section Three of
the form in the affirmative, Appellant admitted to having
“experimentally/casually used marijuana within the past six
months.”

Enlistment Statement of Understanding: Appellant confirmed that
she understood that “DRUG USAGE IN THE NAVY IS PROHIBITED AND
WILL NOT BE TOLERATED!”

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United States v. Hardison, No. 06-0064/NA


that Appellant “knew better.   She came in on a drug waiver.        She

knew the Navy’s drug policy and she violated it anyway.”

     Defense counsel did not object to this argument.         The

military judge did not address trial counsel’s argument and did

not give a curative or limiting instruction to the jury in

response to the Government’s statements.      The military judge

instructed members to “consider all matters . . . offered in

aggravation” including the enlistment documents concerning

Appellant’s preservice drug use.       (Emphasis added).

     Before the Navy-Marine Corps Court of Criminal Appeals

Appellant argued that the military judge committed plain error

in admitting her preservice drug use during sentencing.

Hardison, 2005 CCA LEXIS 258, at *1, 2005 WL 2105409, at *1.

The lower court noted that Appellant had not raised her prior

use of marijuana in mitigation or extenuation.      2005 CCA LEXIS

258, at *3, 2005 WL 2105409, at *1.      However, the court

concluded that “[g]iven the confusion in our case law, we cannot

hold that the military judge committed clear and obvious error

in admitting” the exhibits in question.      2005 CCA LEXIS 258, at

*4, 2005 WL 2105409, at *2.    In particular, the lower court

noted that in United States v. Martin, 5 M.J. 888, 889 (N.C.M.R.

1978), the court stated, “‘Once a member qualifies for entry,

his past misdeeds should not be held against him and he should

be able to start off with a clean slate.’”      2005 CCA LEXIS 258,


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at *4, 2005 WL 2105409, at *2.   However, the lower court also

noted that in United States v. Honeycutt, 6 M.J. 751, 753

(N.C.M.R. 1978), “[t]he majority held that evidence of

preservice drug use was admissible as it ‘better define[d] the

enormity of the crimes for which Appellant was sentenced.”   2005

CCA LEXIS 258, at *5; 2005 WL 2105409, at *2.

     Before this Court, Appellant again argues that her

sentencing was prejudiced by the admission of her preservice

drug use.   Appellant asserts that precedent has clearly held

that there must be a “direct relation” between the use of which

she was convicted and the uncharged preservice drug use.

Appellant further contends that there was no such link here, and

that admission of the records was to her prejudice.

     The Government argues that Appellant’s preservice drug use

demonstrated that “Appellant’s wrongful use of marijuana was not

an isolated occurrence.   The evidence of Appellant’s pre-service

drug use was, therefore, directly related to the offense for

which she was convicted . . . .”

                            DISCUSSION

     In the absence of a defense objection we review a claim of

erroneous admission of evidence for plain error under the test

set forth in United States v. Powell, 49 M.J. 460, 463-65

(C.A.A.F. 1998); United States v. Hays, 62 M.J. 158, 166

(C.A.A.F. 2005).   Plain error is established when:   (1) an error


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was committed; (2) the error was plain, or clear, or obvious;

and (3) the error resulted in material prejudice to substantial

rights.   Powell, 49 M.J. at 463-65.   Appellant has the burden of

persuading the court that the three prongs of the plain error

test are satisfied.   United States v. Scalo, 60 M.J. 435, 436

(C.A.A.F. 2005).

     In this case, Appellant’s admitted preservice drug use was

offered in aggravation.   Rule for Courts-Martial (R.C.M.)

1001(b)(4) sets forth the general contours of permissible

evidence of aggravation at sentencing:

     (4) Evidence in aggravation.
     The trial counsel may present evidence as to any
     aggravating circumstances directly relating to or
     resulting from the offenses of which the accused has
     been found guilty. Evidence in aggravation includes,
     but is not limited to, evidence of financial, social,
     psychological, and medical impact on or cost to any
     person or entity who was the victim of an offense
     committed by the accused and evidence of significant
     adverse impact on the mission, discipline, or
     efficiency of the command directly and immediately
     resulting from the accused’s offense.

     There are two primary limitations on the admission of

aggravation evidence.   First, such evidence must be “directly

relating” to the offenses of which the accused has been found

guilty.   This rule does “‘not authorize introduction in general

of evidence of . . . uncharged misconduct,’” United States v.

Nourse, 55 M.J. 229, 231 (C.A.A.F. 2001), and is a “‘higher




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standard’ than ‘mere relevance.’”      United States v. Rust, 41

M.J. 472, 478 (C.A.A.F. 1995).

      The second limitation is that any evidence that qualifies

under R.C.M. 1001(b)(4) must also pass the test of Military Rule

of Evidence (M.R.E.) 403, which requires balancing between the

probative value of any evidence against its likely prejudicial

impact.   See United States v. Wilson, 35 M.J. 473, 476 n.5

(C.M.A. 1992).

I.   “Directly Related” Evidence

      The meaning of “directly related” under R.C.M. 1001(b)(4)

is a function of both what evidence can be considered and how

strong a connection that evidence must have to the offenses of

which the accused has been convicted.

      Regarding the strength of the connection required between

admitted aggravation evidence and the charged offense, this

Court has consistently held that the link between the R.C.M.

1001(b)(4) evidence of uncharged misconduct and the crime for

which the accused has been convicted must be direct as the rule

states, and closely related in time, type, and/or often outcome,

to the convicted crime.

      For instance, in United States v. Wingart, 27 M.J. 128, 135

(C.M.A. 1988), the Court held that uncharged misconduct could be

admitted in aggravation at sentencing if it was directly

preparatory to the crime for which Appellant was convicted.        In


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United States v. Hardison, No. 06-0064/NA


Nourse, this Court concluded that testimony about uncharged

robberies was properly admitted in aggravation when it

illustrated that the uncharged misconduct was part of the same

course of conduct which the accused had committed against the

same victim, in the same place, several times prior to the

charged offense.   55 M.J. at 232.   See also United States v.

Metz, 34 M.J. 349, 351-52 (C.M.A. 1992) (holding that uncharged

conduct was admissible because it was “interwoven” in the res

gestae of the crime and provided information to determine the

identity of the murderer and his intent when committing the

crime); United States v. Ross, 34 M.J. 183, 187 (C.M.A. 1992)

(concluding that it was permissible to show that the appellant

altered twenty to thirty enlistment aptitude tests, even though

he pleaded guilty only to altering four as it showed a wider

course of conduct); United States v. Mullens, 29 M.J. 398, 400

(C.M.A. 1990) (stating that uncharged misconduct consisted of “a

continuous course of conduct involving the same or similar

crimes, the same victims, and a similar situs”); United States

v. Silva, 21 M.J. 336, 337 (C.M.A. 1986) (holding that uncharged

misconduct was admissible because it was an “integral part of

[the appellant’s] criminal course of conduct”).

     In regard to the strength of the connection needed, it is

important to note that judicial discretion to admit uncharged

misconduct under R.C.M. 1001(b)(4) was limited when the


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United States v. Hardison, No. 06-0064/NA


President promulgated the 1984 edition of the Manual for Courts-

Martial, United States (1984 MCM), replacing the 1969 edition.

The 1984 MCM replaced the original rule for the admission of

evidence at sentencing, which allowed “any aggravating

circumstances” with the requirement that the evidence in

aggravation be “directly related.”      See Manual for Courts-

Martial, United States (1969 rev. ed.); see also Wingart 27 M.J.

at 136.

     In this case, the Government argues that Appellant’s use of

drugs after enlistment was “[d]espite [her] knowledge [of the

Navy’s policies], and despite the fact that a drug waiver was

required in order for her to enlist in the U.S. Navy . . . .      In

light of this evidence, Appellant’s wrongful use of marijuana

was not an isolated occurrence.”       The Government concludes

therefore that Appellant’s preservice drug use was “directly

related to the offense for which she was convicted.”

     There are three problems with this argument.       First, it is

not clear how the drug use of which Appellant was convicted was

not an isolated event, especially when compared with the cases

cited above in which this Court has found the requisite

relationship between the charged crime and uncharged misconduct.

The only apparent link is that Appellant was convicted of using

the same drug that she admitted to using prior to her service.

More than three years separated the incidents, however, and


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United States v. Hardison, No. 06-0064/NA

there was no evidence that the uses were connected in a manner

this Court has recognized.   In terms of how “isolated” the

events were, this Court in United States v. Shupe, 36 M.J. 431

(C.M.A. 1993), faced a similar question.    In Shupe, this Court

was presented with five specifications of drug distribution and

explicitly found that they were “not isolated” from five

uncharged instances of drug distribution that were admitted in

aggravation.   Id. at 436.   This Court found that they were

associated in that they were both part of a single “extensive

and continuing scheme to introduce and sell [drugs].”   Id. at

436.   The “continuous nature of the charged conduct” was

important to our conclusion.   Id. at 436 (quoting United States

v. Mullen, 29 M.J. 398, 400 (C.M.A. 1990)).   There was no

similar connection here.

       Second, even assuming that the events were not isolated,

this does not necessarily mean that they were “directly

related.”   The correct standard for admission is not whether

some prior instance is or is not isolated from a subsequent

incident, but whether the former is directly related to the

crime for which Appellant was convicted.    In this case, it is

not evident why the prior use or the pledge to refrain from drug




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United States v. Hardison, No. 06-0064/NA

use is “directly related” to the offense for which Appellant was

convicted.2

     Third, as an alternative the Government suggests that the

“directly related” aggravation derives not from the preservice

drug use itself, but from the fact that the military provided

Appellant with a second chance, a second chance that she

proceeded to squander.   According to this argument, it was not

that Appellant’s convicted behavior was associated with her

prior drug usage, but that it was linked with her admission of

preservice drug use and acknowledgment of the Navy’s drug

policy.   However, this argument would appear to negate the

meaning of the words “directly related.”

     First, all recruits are apparently required to sign the

statement and thus there would be nothing “aggravating” about

Appellant’s case.    Logically, for something to “aggravate” it

must “make worse, more serious, or more severe” than it would

otherwise have been.   Webster's Ninth New Collegiate Dictionary

64 (9th ed. 1991).   There is no other position for a

servicemember to be in than to have signed the drug policy

statement, and thus no way that that alone could be aggravating.

See United States v. Kirkpatrick, 33 M.J. 132, 133 (C.M.A. 1991)

(holding that “[w]e have long condemned any references to

2
 This is not to say that such evidence is never admissible on
sentencing. In an appropriate case, such evidence may be
admitted as rebuttal to the defense presentation.

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United States v. Hardison, No. 06-0064/NA

departmental or command policies made before members charged

with sentencing responsibilities” and thus that an accused knew

of a service’s policy against drug use is not valid aggravation)

(citations and quotation marks omitted).

     Second, although Appellant’s use of drugs following the

Navy’s offer of accommodation was, in common parlance, morally

“aggravating,” it does not logically or legally make her

admissions of priorservice use “directly related” to the charged

offense.   “Evidence in aggravation” in the sense of R.C.M.

1001(b)(4) refers to a limited set of uncharged misconduct.

     Otherwise, every waiver for every offense could be admitted

in aggravation for any offense occurring under the UCMJ, because

each waiver would recognize that the military gave the accused a

second chance that was abused.   In the context of drug offenses,

the military’s policy on drug use, signed by all recruits, would

be equally admissible as aggravating evidence, demonstrating as

trial counsel argued in this case, aggravation on the ground

that the accused knew the Navy’s drug policy and violated it

anyway.    Such an approach would make the President’s choice of

the words “directly related” devoid of meaning.

     The net effect of this analysis is that in admitting

Appellant’s preservice admissions of drug use and her

understanding of the Navy’s zero tolerance drug policy at

sentencing, the military judge’s actions satisfied prongs one


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United States v. Hardison, No. 06-0064/NA

and two of the Powell test.   In other words, this evidence was

not directly related to the offense of which Appellant was

convicted, and admitting the documents was clear and obvious

error in light of the language of R.C.M. 1001(b)(4).3    We turn

now to the final part of Powell to determine if the admission

materially prejudiced Appellant’s substantial rights.

II.   Prejudice

      This Court recognizes that even without the admission of

the uncharged misconduct there was properly admitted evidence

that cast Appellant in a negative light.    On the one hand, there

were Appellant’s futile and furtive attempts to avoid taking the

drug test, and Appellant’s lack of full contrition in her

unsworn statement to the court.

      On the other hand, Appellant’s trial and sentencing was

before members, rather than a military judge alone.     While the

“‘experienced and professional military lawyers who find

themselves appointed as trial judges’” are assumed to be able to

appropriately consider only relevant material in assessing

sentencing, the same cannot be said for members.   United States

v. McNutt, 62 M.J. 16, 26 (C.A.A.F. 2005) (quoting United States

v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)).    Members are less


3
  In light of our conclusion that the admitted evidence does not
qualify under R.C.M. 1001(b)(4), it is unnecessary to address
the second limitation on aggravation evidence, namely, its
admissibility under M.R.E. 403.

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United States v. Hardison, No. 06-0064/NA

likely to be able to separate relevant matters and make their

decisions based solely on admissible evidence.   Wingart, 27 M.J.

at 136 (holding that relaxing the rules of admissibility at

sentencing hearings would generate difficulties “especially . .

. when sentencing is by court members instead of by the judge”);

see also United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.

2006) (holding that “particularly in light of the fact that the

sentencing was by a military judge sitting alone,” appellant

failed to show how impermissible evidence had prejudiced him).

     That the military judge offered no curative instructions

and emphasized that “all matters . . . offered in aggravation,”

and specifically, the exhibits at issue here, should be

considered by the members in their sentencing analysis makes

this case problamatic.   “Particularly in a criminal trial, the

judge’s last word is apt to be the decisive word.”   United

States v. Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001).

     Based on Appellant’s four positive evaluations, absence of

any negative evaluations, no prior nonjudicial punishments or

convictions, her admission to having made a mistake, and a lack

of any other aggravating testimony, it is not evident that

Appellant so clearly deserved her bad-conduct discharge such

that the evidence of preservice drug use was irrelevant to the

members’ decision.   It seems likely that the outcome in the




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United States v. Hardison, No. 06-0064/NA

sentencing portion of Appellant’s trial may have been different

had the evidence been properly excluded.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to the findings but reversed

as to the sentence.   The sentence is set aside and the record of

trial is returned to the Judge Advocate General of the Navy.   A

rehearing on sentence may be ordered.




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