                          UNITED STATES, Appellee

                                          v.

                       Anthony T. YOUNG, Corporal
                      U.S. Marine Corps, Appellant


                                   No. 00-0279


                           Crim. App. No. 98-0505



       United States Court of Appeals for the Armed Forces

                          Argued December 5, 2000

                           Decided June 29, 2001

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

                                      Counsel
For Appellant: Major Eric P. Gifford, USMC (argued); Lieutenant
   Mari-Rae Sopper, JAGC, USNR (on brief).

For Appellee: Lieutenant James E. Grimes, JAGC, USNR (argued);
   Colonel Marc W. Fisher, Jr., USMC, and Lieutenant Commander
   Philip L. Sundel (on brief); Colonel Kevin M. Sandkuhler,
   USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant
   Timothy E. Curley, JAGC, USNR.

Military Judge:     T. G. Hess


          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Young, No. 00-0279/MC


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of conspiracy

to distribute marijuana and distribution of marijuana, in

violation of Articles 81 and 112a, Uniform Code of Military

Justice, 10 USC §§ 881 and 912a, respectively.      The adjudged and

approved sentence provides for a bad-conduct discharge,

confinement and partial forfeiture of pay for 36 months, and

reduction to the lowest enlisted grade.      The Court of Criminal

Appeals affirmed.

      This Court granted review of the following issue:

      WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE ADMISSION
      OF A TAPED CONVERSATION BETWEEN APPELLANT AND A COOPERATING
      WITNESS OCCURRING 23 DAYS AFTER THE CHARGED CONSPIRACY,
      INCLUDING WHAT COULD BE INTERPRETED AS THE PLANNING OF A
      FUTURE DRUG TRANSACTION, WAS PROPER TO SHOW APPELLANT’S
      INTENT WITH RESPECT TO THE PRIOR CHARGED CONSPIRACY, WHERE
      THAT PORTION OF THE CONVERSATION CONSTITUTED EVIDENCE OF
      UNCHARGED MISCONDUCT.


For the reasons set out below, we affirm.

                            Factual Background
      On December 26, 1997, Private Frank Smith asked appellant if
he could store some marijuana at appellant’s off-base apartment,

and appellant agreed.      The following day, Smith and appellant

were approached by Religious Program Specialist Seaman Apprentice

Berrian in the parking lot of the barracks.      Berrian asked Smith

if he could obtain two ounces of marijuana for him.      Unbeknownst

to appellant and Smith, Berrian was then acting as a cooperating

witness with Naval Criminal Investigative Service.      Smith agreed

to return to the base later that night and sell some marijuana to

Berrian.


                                         2
United States v. Young, No. 00-0279/MC


       Smith and appellant then went to appellant’s apartment,

where the marijuana was stored.              Smith testified that at the

apartment, he found two bags of marijuana, including the one he

had stored.       Smith offered to split the money with appellant.

Appellant agreed and said, “Go ahead.”              Smith then took both bags

of marijuana back to Camp Pendleton and sold them to Berrian for

$100.00.     At trial, Berrian corroborated appellant’s part in the

conspiracy by testifying that Smith returned to the base with two

bags of marijuana and told him that one of the bags belonged to

appellant.       Appellant’s agreement with Smith to sell the

marijuana and split the money, and Smith’s act of selling the

marijuana to Berrian, were the factual basis for the charges

against appellant.

       On January 3, 1996, Berrian approached Smith and complained

that he was shortchanged in the December 27 marijuana purchase.

Smith replied that appellant was the one who measured out the

amounts of marijuana, and he speculated that appellant probably

smoked some of it while it was stored at his apartment.

       On January 17, 1996, while wearing a recording device,

Berrian approached appellant and asked to buy more marijuana from

him.    A recording of the conversation was introduced and played

at trial.       A written transcript also was provided to the court

members.     The transcript identifies Berrian as “CW” (cooperating

witness) and appellant as “Young.”              It reads as follows:

       CW:       Hey, Young . . . .

                                         * * *

       CW:       Hey, (unintelligible) . . . about an ounce?

       YOUNG:    Probably Friday.


                                         3
United States v. Young, No. 00-0279/MC



      CW:      For sure Friday?

      YOUNG:   I can’t say for sure, cause I ain’t
               talked to my boy in a couple of weeks
               since s--- happened . . . .

      CW:      Alright, because Smitty told me that
               whatever . . . You, that you pinched off
               whatever. From the s--- that I got sold
               you know what I’m saying? . . . .

      YOUNG:   I aint pinch out s--- man . . .

      CW:      So just ah . . . .            if you can . . .

      YOUNG:   Don’t go to Smitty no more man . . . .
               because (unintelligible) . . . I’m
               p---ed off at him as it is cause he
               didn’t pay me my f----- money.

      CW:      You want me to just get with you Friday?

      YOUNG:   Friday . . .

      CW:      Alright . . . Hey, I’m comin in the morning of
               Friday . . .

      YOUNG:   Alright . . .

      CW:      So we can do it at lunch or whatever . . . .

      YOUNG:   Yeah . . .

      CW:      Alright . . . .

      At trial, defense counsel made a limited objection to the

tape and transcript under Mil. R. Evid. 404(b), Manual for

Courts-Martial, United States (2000 ed.).1             Defense counsel

conceded that part of the taped conversation was admissible to

show appellant’s role in the conspiracy; however, he objected to

the part of the conversation concerning the subsequent uncharged

drug transaction.     The prosecution argued that it was not


1
 All Manual provisions are identical to the ones in effect at the
time of appellant’s trial.



                                         4
United States v. Young, No. 00-0279/MC


offering the evidence to show that appellant was a bad person or

a drug dealer.     Instead, it argued that during the conversation

on January 17, appellant admitted his role in the December 27

drug transaction, and it was necessary to show that the January

17 conversation occurred during a drug negotiation in order for

the members to understand that appellant was admitting his

participation in the December 27 drug transaction.     Trial counsel

argued “[t]hat you can’t understand the accused’s statements

about the 27 December drug deal unless you know [that on 17

January] they’re talking about a drug deal.”     Trial counsel

argued that statements like “Don’t go to him anymore” and “I

didn’t pinch out anything” were meaningless without evidence that

they were uttered during a subsequent drug transaction.

      The military judge overruled the defense objection and

admitted the evidence.      Immediately after the members heard the

tape and read the transcript, the military judge gave the

following limiting instruction:

            Now, members of the court, before we proceed, there’s a
            matter I want to bring to your attention. Based on a
            reading of Prosecution Exhibit 6 for identification
            that we just retrieved [the transcript], and listening
            to Prosecution Exhibit 5 [the tape], this evidence may
            suggest to you that Berrian was attempting to set up
            another drug transaction with the accused, and that the
            accused may have tentatively agreed to do so.

            Now this evidence may be considered by you for its
            limited purpose of its tendency to show that the
            accused intended to join in a conspiracy, and that is
            the conspiracy that he is charged with.

            You’ll be told when I instruct you on the law of
            conspiracy that one’s intent must embrace each and
            every element of the target offense and in this case
            that would be distribution.

            Secondly, this information or this evidence has been
            provided to you to show the context in which the


                                         5
United States v. Young, No. 00-0279/MC


            statements were made about the transaction which
            Berrian testified took place on 27 December 1995, I
            believe.

            Now, the accused has not been charged with
            participating in or attempting to participate in a
            second drug transaction. It will be unfair in the
            extreme to punish him for that.

            We’re only to concern ourselves with the charged
            offenses. You may not consider this evidence for any
            other purpose, other than whatever his original intent
            may have been on the alleged conspiracy or for the
            context of conversation and you may not conclude from
            this evidence that the accused is a bad person or his
            criminal tendency and he, therefore, committed the
            charged offenses.

            Do you understand that?          If so, please raise your hand.

            An affirmative response from all the members.

      The defense case focused on attacking the credibility of

Smith and Berrian.      Appellant did not testify.       In closing

arguments on findings, the prosecution repeatedly argued that

appellant admitted his guilt during the tape-recorded

conversation with Berrian.

                                 Discussion
      Mil. R. Evid. 404(b) provides: “Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”           The

rule permits such evidence, however, “for other purposes, such as

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident[.]”            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. Baumann, 54 MJ 100, 104 (2000);

United States v. Browning, 54 MJ 1, 6 (2000).




                                         6
United States v. Young, No. 00-0279/MC


      The test for admissibility of evidence of uncharged crimes

is “whether the evidence of the misconduct 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).       In

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

adopted the following three-pronged test for admissibility of

evidence of “other crimes, wrongs, or acts”:    (1) the evidence

must reasonably support a finding that the appellant committed

the crime, wrong, or act; (2) it must make a fact of consequence

more or less probable; and (3) its probative value must not be

substantially outweighed by the danger of unfair prejudice.

      Although most cases, including Reynolds, have involved
evidence of a crime, wrong, or act that preceded the charged

crime, this Court has applied the Reynolds test to subsequent

acts as well.     See United States v. Dorsey, 38 MJ 244, 246 (CMA

1993) (subsequent bribery of a witness admitted to show intent to

obstruct justice by earlier bribery of another witness).     This

approach is consistent with prevailing federal practice under
Fed. R. Evid. 404(b), on which the military rule is based.     See

United States v. Latney, 108 F.3d 1446, 1448 (D.C. Cir. 1997);

United States v. Buckner, 91 F.3d 34, 36 (7th Cir. 1996); United

States v. Procopio, 88 F.3d 21, 29 (1st Cir.), cert. denied, 519

U.S. 1046 (1996); United States v. Olivo, 69 F.3d 1057, 1063
(10th Cir. 1995), cert. denied, 519 U.S. 906 (1996); United

States v. Morsley, 64 F.3d 907, 911 (4th Cir. 1995), cert.

denied, 516 U.S. 1065 (1996); United States v. Corona, 34 F.3d

876, 881 (9th Cir. 1994); 29 Am. Jur. 2d, Evidence § 415 (1994)


                                         7
United States v. Young, No. 00-0279/MC


(“Under FRE Rule 404(b), evidence of other crimes, wrongs, or

acts may include acts committed prior to, simultaneous to, or

after the charged offense . . . .”) (footnotes omitted);

Drafters’ Analysis of Mil. R. Evid. 404(b), Manual, supra at A22-

34.2

       The third prong of the Reynolds test requires application of

the balancing test under Mil. R. Evid. 403.             A military judge

enjoys wide discretion under Mil. R. Evid. 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, we will

reverse only for a clear abuse of discretion.             United States v.

Browning, 54 MJ 1, 7 (2000).

       Applying the foregoing principles, we hold that the military

judge did not abuse his discretion.             We need not decide whether

the military judge’s theory, that appellant’s willingness to sell

drugs to Berrian on January 17 related back to appellant’s intent

to conspire with Smith on December 27, passes muster under

Reynolds, because the uncharged misconduct was admissible for a

2
  We recognize the danger of unfair prejudice in admitting
subsequent acts of misconduct. This danger was articulated as
follows in United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir.
1994):

            When jurors hear that a defendant has on [another]
            occasion[] committed essentially the same crime as that
            for which he is on trial, the information
            unquestionably has a powerful and prejudicial
            impact. . . . When prior act[] evidence is introduced,
            regardless of the stated purpose, the likelihood is
            very great that the jurors will use the evidence
            precisely for the purpose it may not be considered; to
            suggest that the defendant is a bad person . . . and
            that if he “did it [once] he probably did it again.”



                                         8
United States v. Young, No. 00-0279/MC


separate limited purpose, to show the subject matter and context

of a conversation in which appellant admitted the charged

conspiracy.    See United States v. Taylor, supra (military judge

did not abuse discretion by admitting unredacted confession

containing evidence of uncharged misconduct); cf. United States

v. Matthews, 53 MJ 465 (2000) (unrelated subsequent drug

ingestion not admissible to show previous knowing use of drugs);

United States v. Hoggard, 43 MJ 1 (1995) (lustful intent in

indecent assault 3-6 months after charged indecent act with

another victim not admissible to show lustful intent during

charged indecent assault).

      We also are satisfied that any overbreadth in the military

judge’s limiting instruction was harmless error.       Appellant’s

tape-recorded admission of guilt was powerful evidence.       It

greatly overshadowed any suggestion in the limiting instruction

that appellant’s willingness to sell drugs on January 17 might

relate back to appellant’s intent to conspire with Smith on

December 27.    The prosecution did not rely on this tenuous

theory.   Instead, the prosecution forcefully and repeatedly

emphasized appellant’s tape-recorded admission of guilt,

“probably the most probative and damaging evidence that can be

admitted” against an accused.        See Arizona v. Fulminante, 499
U.S. 279, 292 (1991).      On the basis of the entire record, we are

satisfied that any overbreadth in the limiting instruction did

not substantially influence the findings or sentence.       Art.

59(a), UCMJ, 10 USC § 859(a); Kotteakos v. United States, 328

U.S. 750, 765 (1946).




                                         9
United States v. Young, No. 00-0279/MC


                                  Decision

      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




                                         10
United States v. Young, No. 00-0279/MC




EFFRON, Judge   (concurring in part and in the result):

     I disagree with the majority’s theory that consideration of

the entire conversation between appellant and the confidential

informant was necessary in order to understand the context of

two admissions made in the course of the conversation.    Ample

evidence of the context already had been introduced through the

confidential informant's testimony.   Under these circumstances,

it was not necessary to admit into evidence the statements

involving uncharged misconduct in order to understand the

admissible portions of the conversation.   Nonetheless, I agree

with the majority’s view that any error in this case was

rendered harmless by the substantial weight of appellant’s

admissions regarding the charged offenses.
United States v. Young, 00-0279/MC




    SULLIVAN, Judge (concurring in part and in the result and

dissenting in part):


    Appellant was forced to defend against two separate incidents

of drug dealings while only being charged with one.   In my view,

the discussion of the “ounce sale” on January 17, 1997, should

have been redacted from the tape-conversation evidence.   I

conclude, as I did in United States v. Matthews, 53 MJ 465, 472

(2000) (Sullivan, J., concurring in the result), that the

probative value of this evidence (to show the context of a

conversation) clearly was substantially outweighed by the danger

of unfair prejudice.   Nevertheless, I agree that appellant’s

tape-recorded admission of guilt renders this error harmless.

Art. 59(a).
