                        UNITED STATES, Appellee

                                     v.

                        Scott D. GIBSON, Private
                          U.S. Army, Appellant


                               No. 02-0443


                         Crim. App. No. 9900573



       United States Court of Appeals for the Armed Forces

                        Argued November 6, 2002

                        Decided January 9, 2003

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

                                  Counsel

For Appellant: Captain Brian S. Heslin (argued); Colonel Robert
   D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
   Major Imogene M. Jamison (on brief); and Colonel Adele H.
   Odegard.

For Appellee: Captain Abraham F. Carpio (argued); Lieutenant
   Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
   Leeker, Major Mark L. Johnson (on brief); and Captain
   Theodore C. Houdek.

Military Judge:    Donna M. Wright


  This opinion is subject to editorial correction before final publication.
United States v. Gibson, No. 02-0443/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of conspiring to

commit premeditated murder, violating a general regulation by

possessing drug paraphernalia, making a false official statement,

and wrongfully possessing and using marijuana, in violation of

Articles 81, 92, 107, and 112a, Uniform Code of Military Justice,

10 U.S.C. §§ 881, 892, 907, and 912a (2002), respectively.      The

adjudged and approved sentence provides for a dishonorable

discharge, confinement for five years, and total forfeitures.

The Court of Criminal Appeals affirmed the findings and sentence

without opinion.

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO GIVE A
      REQUESTED ACCOMPLICE INSTRUCTION AT APPELLANT’S COURT-
      MARTIAL.

For the reasons set out below, we hold that the military judge

erred.

                            Factual Background
      In February 1998, Private First Class (PFC) Toni Bell
hired Private (PV1) Kurtis Armann to kill the father of her

oldest child.     PFC Bell believed that the father was attempting

to gain custody.     PFC Bell agreed to pay PV1 Armann a $5,000 non-

refundable deposit.      She also agreed that if she tried to cancel

the contract to kill the child’s father, PV1 Armann would then be

authorized to kill her.       When PFC Bell found out that her child’s

father was not seeking custody, she told PV1 Armann that she did

not need his services.      PV1 Armann told her that she was still




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United States v. Gibson, No. 02-0443/AR


required to pay the $5,000, even if she no longer wanted the

child’s father killed.      She never paid the $5,000 deposit.

      At some time in March 1998, PV1 Armann began to talk with

his group of marijuana-smoking friends about various schemes to

kill PFC Bell.     This group consisted of PV1 Armann, PV1 Monica

Oie, PV1 Jeremy Lund, PV1 Jeremy Ashby, and Appellant.      At

various times, PV1 Armann talked about poisoning PFC Bell,

injecting her with a heart-stopping drug, smashing her head

against the dashboard of her car, building a car bomb, knocking

her car off the road with a four or five-barreled “blast gun,”

luring her onto a highway rest stop and shooting her, and

shooting her while she walked her dog.      Appellant was not a party

to the discussions about poison and a car bomb because these

discussions occurred while he was deployed to Bosnia.

      Based on sketches and ideas from PV1 Armann, PV1 Roy Tarbox

made two weapons for PV1 Armann in the unit’s machine shop.      The

first weapon blew up when PV1 Armann test-fired it.      PV1 Tarbox

made a second weapon, which PV1 Armann and PV1 Lund successfully

test-fired on October 7, 1998.

      On October 10, 1998, PV1 Armann shot PFC Bell while she was

on gate-guard duty, using a weapon made in the unit’s machine

shop by PV1 Tarbox.      The bullet was deflected by the collar of

her kevlar vest.     The bullet penetrated three-fourths of an inch

into her neck but did not kill her.

      At the outset of the trial, the Government conceded that

Appellant “was not the main driving force behind this

conspiracy,” but it contended that Appellant was a member of the

team that planned to kill PFC Bell.       Appellant was charged with


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United States v. Gibson, No. 02-0443/AR


two specific overt acts in furtherance of the conspiracy:

reconnoitering the dog-walking trail used by PFC Bell and

reconnoitering and timing the highway routes used by PFC Bell.

      The defense theory was the Appellant never took PV1 Armann

seriously and constantly ridiculed his plans.       The defense

asserted that Appellant was cut out of the conspiracy to shoot

PFC Bell and not involved in the plans to build the weapon that

was used to shoot her.

      The Government relied primarily on the testimony of three

alleged co-conspirators to prove the conspiracy: PV1 Oie, PV1

Tarbox, and PV1 Lund.      A fourth, PV1 Ashby, testified for the

defense.    PV1 Tarbox, PV1 Lund, and PV1 Ashby testified under a

grant of testimonial immunity.

      PV1 Oie had already been tried when she testified.        She did

not have a grant of testimonial immunity, but her case was

pending action by the convening authority at the time of

appellant’s trial.

      PV1 Oie testified that she had pleaded guilty to two drug

offenses, solicitation to commit murder, and conspiracy to commit

murder.    She did not mention that she was awaiting the convening

authority’s action on her sentence.       In her clemency petition,

submitted shortly after Appellant’s trial,1 she asked the
convening authority to reduce her sentence for several reasons,

including her testimony against Appellant.      PV1 Oie’s clemency

petition recites that she was “the prosecution’s essential key

witness” against Appellant, and “really did make the

1
  Appellant was sentenced on June 3, 1999.      PV1 PV1 Oie’s
clemency petition is dated June 29, 1999.


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United States v. Gibson, No. 02-0443/AR


prosecution’s case against [Appellant].”        At the court below, the

Government conceded the possibility that “[PV1] Oie was motivated

to ‘save her own skin’ at the expense of Appellant,” and that her

desire for leniency from the convening authority might have

“entic[ed PV1] Oie to minimize her own criminal involvement at

the expense of [A]ppellant.”

      PV1 Oie testified that Appellant was one of her core group

of friends, along with PV1 Armann and PV1 Ashby.        Her boyfriend

at the time was PV1 Armann, but she was “pretty close” to

Appellant.    After PV1 Armann shot PFC Bell and was put in

pretrial confinement, PV1 Oie became romantically and sexually

involved with Appellant.

      PV1 Oie testified that she and her friends would often “hang

out,” smoke marijuana, and discuss PV1 Armann’s various plans to

kill PFC Bell.     Appellant “would criticize and give advice on why

the plans wouldn’t work or why they might work.”        She testified

that Appellant was more involved in the plans to shoot PFC Bell

than she was.     During September 1998, Appellant “expressed doubts

on if it would ever occur, and irritation that, you know, [PV1]

Armann wasn’t carrying through, and impatience.”        On one

occasion, Appellant said, “I don’t see why he just doesn’t walk

into her house and slit her throat and walk out.”

      PV1 Oie testified that at one time she and PV1 Armann

planned to poison PFC Bell.       She and PV1 Armann kept the poison

in their rooms.     She was not present when the plan to shoot PFC

Bell at a rest stop was rehearsed.        Her knowledge of that plan

came from PV1 Armann, who told her that Appellant’s part of the

plan was to be a lookout.


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United States v. Gibson, No. 02-0443/AR


      PV1 Oie, Appellant, PV1 Armann, and possibly PV1 Ashby saw

the second weapon.      She testified that Appellant aimed it out the

window and said it needed a magnifying scope.       According to PV1

Oie, Appellant told PV1 Armann to trust him, that he was a good

shot, and that he would not miss.

      PV1 Oie testified that on February 1, 1999, Appellant

purchased marijuana for both of them.       They were smoking it in

her room when the military police came and confiscated the

marijuana and the paraphernalia they used to smoke it.       She

testified that she and Appellant owned the paraphernalia jointly.

      On cross-examination, PV1 Oie testified that it was always

PV1 Armann who brought up the subject of killing PFC Bell.

Appellant and PV1 Ashby criticized PV1 Armann’s plans, and,

according to PV1 Oie, “They weren’t sure of his credibility or

stability, in general, to carry them out.”       PV1 Oie admitted that

she never heard Appellant say that he wanted PFC Bell to be dead

or that he wanted to kill her.        She also admitted that she never

saw Appellant do anything to “facilitate any of these plans.”

Finally, she admitted that all she saw was “[the] guys sitting

around talking . . . , [PV1] Armann talking about his plans to

kill PFC Bell . . . , [the] guys trying to change the subject

. . . , [and that PV1 Armann] kep[t] coming back with a plans

[sic].”

      In response to questioning by the military judge, PV1 Oie

testified that Appellant expressed doubts about PV1 Armann’s

ability to carry out a plan, and that he criticized and made fun

of PV1 Armann’s plans.      She explained that PV1 Armann would “come

up with one plan, and then come up with another plan and another


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United States v. Gibson, No. 02-0443/AR


plan.    And the plans, he would never follow through with any of

them.”    Finally, PV1 Oie admitted that her knowledge of

Appellant’s participation in the plan to shoot PFC Bell in the

rest area came from PV1 Armann.

      After the members had closed for deliberations, they

requested that PV1 Oie be recalled.          On recall, she testified

that Appellant had never talked to her about reconnoitering the

dog-walking trails.      She testified that her belief that Appellant

participated in that reconnaissance was based on her

conversations with PV1 Armann.        On cross-examination, PV1 Oie

admitted that Appellant did not tell her that he participated in

the reconnaissance, but only that he thought that the trail was

too long and “it would take too long to get there and back.”

      PV1 Tarbox had already been convicted of attempted

premeditated murder and conspiracy to commit aggravated assault

when he testified under a grant of testimonial immunity.          He

testified that Appellant came to the machine shop once while he

was working on the first weapon.          When asked how Appellant

reacted when he saw the weapon, PV1 Tarbox responded, “He,

basically, thought it was neat, sir.          A nice little toy, I guess.

I don’t know.”     PV1 Tarbox testified that appellant did not come

back again.

      PV1 Lund had been convicted of conspiracy to commit murder

and attempted murder when he testified under a grant of

testimonial immunity.       He participated in “quite a few”

discussions with Appellant and others concerning the death of PFC

Bell.    He testified that the plan to shoot PFC Bell at the

highway rest area was discussed, with Appellant present, “two or


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United States v. Gibson, No. 02-0443/AR


three times at a minimum.”       He, PV1 Armann, PV1 Ashby, and

Appellant did a “dry run” of the plan, which called for Appellant

to be either a driver or a lookout.       PV1 Lund testified that

Appellant expressed no reluctance about participating.

      PV1 Lund testified that PV1 Armann and Appellant told him

about a plan to shoot PFC Bell while she walked her dog.       He

testified that he understood that Appellant’s role was “[t]o be a

secondary shooter to make sure that she dies.”

      PV1 Lund testified that PV1 Armann came up with all the

plans, and that Appellant “was pretty much out of the picture”

when they decided to shoot PFC Bell while she was on guard duty.

Once PV1 Armann and PV1 Tarbox started to make the weapons, there

was considerable animosity between PV1 Armann and Appellant

because PV1 Armann felt that Appellant was “getting too close to

Private PV1 Oie.”     PV1 Lund admitted that he did not know of any

motive on the part of Appellant to kill PFC Bell.

      PV1 Ashby testified for the defense under a grant of

immunity.    At the time of Appellant’s trial, PV1 Ashby had not

yet been tried for his involvement in the shooting of PFC Bell,

and he did not know what the disposition of the charges against

him would be.     He testified that he did not take any of PV1

Armann’s talk seriously, because it was “too outrageous, too many

plans, along with all the other stories he told.”       PV1 Ashby

testified that he and Appellant had concluded that PV1 Armann

“essentially, was full of crap.”

      PV1 Ashby and Appellant were riding in the back of the car,

talking and smoking marijuana, when PV1 Armann drove to the rest

area that he had mentioned as a possible site for killing PFC


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United States v. Gibson, No. 02-0443/AR


Bell.    PV1 Ashby and Appellant did not take this plan seriously.

Appellant got out of the car and walked to a lookout point.           PV1

Armann then drove to that point and picked him up.           The “dry run”

took about five minutes.       On cross-examination, PV1 Ashby

admitted that he gave PV1 Armann “a lot of” .25 caliber

ammunition and a laser pointer.           He insisted, however, that he

did not take PV1 Armann’s plan to kill PFC Bell seriously.

      Sergeant (SGT) James Chapman testified that, shortly after

the shooting, Appellant told him “they got her good in the neck.”

On cross-examination, he agreed that Appellant said “they,” not

“we.”    SGT Chapman notified his platoon sergeant about

Appellant’s comments.      The information was transmitted to the

local office of the US Army Criminal Investigation Command (CID).

      CID Special Agent (SA) James Towle interviewed Appellant and

obtained a statement in which Appellant denied any knowledge of

the identity of the shooter.        This statement was the basis for

the charge of making a false official statement.

      SA Timothy Fitzgerald interviewed Appellant on February 1,

1999, after PV1 Oie’s room was searched and some marijuana and

paraphernalia were seized.       He testified that Appellant waived

his rights and orally confessed to possessing and using marijuana

with PV1 Oie.

      After both sides had rested their cases, defense counsel

requested that the military judge give an accomplice instruction

regarding the testimony of PV1 Oie, PV1 Lund, PV1 Tarbox, and PV1

Ashby.    The standard instruction in the Military Judge’s
Benchbook cautions the court members that an accomplice may be

motivated to testify falsely because of self-interest in


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United States v. Gibson, No. 02-0443/AR


obtaining leniency or immunity from prosecution.        Legal Services,

Dep’t of the Army, Pamphlet 27-9, Military Judges’ Benchbook 7-10

(2001).   The instruction advises the members that an accomplice’s

testimony, even if it is corroborated and apparently credible,

“is of questionable integrity and should be considered by [the

court members] with great caution.”        Id.   See United States v.

Bigelow, 57 M.J. 64, 65 n.1 (C.A.A.F. 2002) (setting out the

“standard” instruction).

      The military judge declined to give the accomplice

instruction, explaining that, in her view,

            [T]here’s got to be something in the witnesses’
            testimony to suggest minimizing their own involvement
            and pointing the blame at others, or something that
            they have to gain by virtue of testifying. And it
            doesn’t appear that any of – Well there was no evidence
            that any of them had anything to gain . . . by virtue
            of testifying. And I didn’t see anything to indicate
            that they were minimizing their own involvement.

      In closing arguments, the two sides argued different

interpretations of essentially the same facts.        The Government

argued that the various conversations among PV1 Armann, PV1 Oie,

PV1 Lund, and Appellant were serious and resulted in an agreement

to kill PFC Bell.     Appellant’s disparaging comments about PV1

Armann’s ideas were characterized as constructive critiques

designed to improve the plan.        The activities at the dog-walking

trail and the rest stop area were characterized as reconnaissance

and dry runs.     The Government argued that Appellant bragged to

SGT Chapman about the shooting.

      The defense argued that Appellant was “cut out of the

picture” before PV1 Armann acquired the weapon from PV1 Tarbox

and shot PFC Bell.      The defense characterized the conversations



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United States v. Gibson, No. 02-0443/AR


among PV1 Armann, PV1 Oie, PV1 Lund, and Appellant as idle,

marijuana-fueled chatter.       The defense argued that Appellant did

not take PV1 Armann seriously and that he ridiculed PV1 Armann’s

schemes as fantasy.      The defense emphasized that Appellant told

SGT Chapman that “they,” and not “he,” shot PFC Bell.      In

rebuttal, the Government conceded that Appellant might have been

“cut from the team” before PV1 Armann shot PFC Bell.      The

Government urged the members to carefully consider PV1 Oie’s

testimony.    He argued:

            The best witness you heard out of this court-martial
            was Private Oie. That’s why we led with her and we put
            her up here first. The reason why she was such a great
            witness was because she was honest . . . . The reason
            why she’s such a good witness is, because her best
            friend in the whole wide world is [Appellant].

      In her instructions, the military judge instructed the

members on the elements of conspiracy as follows:

                 At or near Hanau, Germany, between on or about 1
            July 1998, and on or about 10 October 1998, the accused
            entered into an agreement with [PV1] Jeremy Lund and
            Private Kurtis Armann to commit the premeditated murder
            of Private First Class Toni Bell, an offense under the
            Uniform Code of Military Justice;

                 And that while the agreement continued to exist
            and while the accused remained a party to the
            agreement, the accused, Private Armann and [PV1] Lund
            performed the overt acts alleged . . . that is the
            accused and Private Armann reconnoitered trails
            adjacent to Private First Class Bell’s quarters, at or
            near Pioneer Kaserne, Hanau, Germany, for the purpose
            of determining the best method of shooting PFC Bell
            while she walked her dog, and . . . the accused,
            Private Armann and [PV1] Lund did reconnoiter and time
            routes from Hanau, Germany, to Buedingen, Germany, for
            the purpose of determining the best method of shooting
            PFC Bell while she was riding in an automobile, for the
            purpose of bringing about the object of the agreement.

      Regarding the credibility of witnesses, the military judge

instructed the members as follows:



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United States v. Gibson, No. 02-0443/AR


                 You have the duty to determine the believability
            of the witnesses. In performing this duty you must
            consider each witnesses’ intelligence, ability to
            observe and accurately remember, sincerity and conduct
            in court, and prejudices. Consider also the extent to
            which each witness is either supported or contradicted
            by other evidence, the relationship each witness may
            have with either side, and how each witness might be
            affected by the verdict.


                  . . . .

                 Private Tarbox, Private Lund, Private Ashby and
            Sergeant Chapman testified under a grant of immunity
            . . . . In determining the credibility of [these]
            witness[es], you should consider the fact that . . .
            these witnesses testified under grants of immunity,
            along with all of the other factors affecting the
            witnesses’ believability.

      The court members convicted Appellant of all charges and

specifications.     However, with respect to the conspiracy, they

found him not guilty of the overt act of reconnoitering the dog-

walking trails.

                                 Discussion
      Before this Court, Appellant argues that the military judge

erred by refusing to give the accomplice instruction.     The

Government argues that the military judge’s instructions, as a
whole, adequately covered the subject of witness credibility.

Finally, the Government argues that any error in refusing to give

the accomplice instruction was harmless because the evidence was

overwhelming.

      In United States v. Gillette, 35 M.J. 468, 470 (C.M.A.

1992), this Court held: “[W]henever the evidence raises a

reasonable inference that a witness may have been an accomplice

. . . , and upon a request of either the Government or defense,

the military judge shall give the members a cautionary



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United States v. Gibson, No. 02-0443/AR


instruction regarding accomplice testimony.”       See United States

v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933) (“It is usually

desirable to give [an accomplice instruction]; in close cases it

may turn the scale . . . .”).        Bigelow, 57 M.J. at 67, clarified

Gillette by explaining that the “standard” instruction need not

necessarily be given verbatim, but that “the critical principles

of the standard accomplice instruction shall be given . . . .”

One of the critical principles of the instruction is that the

testimony of an accomplice must be regarded with caution.       See
id.

      The test for determining whether a witness is an accomplice

is whether the witness could be convicted of the same crime.

United States v. McKinnie, 32 M.J. 141, 143 (C.M.A. 1991).       In

this case, PV1 Oie and PV1 Lund were convicted of conspiracy to

murder PFC Bell, and PV1 Tarbox was convicted of attempted

premeditated murder of PFC Bell and conspiracy to commit an

aggravated assault.

      We apply a three-pronged test to determine whether the

failure to give a requested instruction is error: “(1) the
[requested instruction] is correct; (2) ‘it is not substantially

covered in the main [instruction]’; and (3) ‘it is on such a

vital point in the case that the failure to give it deprived [the

accused] of a defense or seriously impaired its effective

presentation.’”     United States v. Damatta-Olivera, 37 M.J. 474,

478 (C.M.A. 1993), quoting United States v. Winborn, 14 C.M.A.

277, 282, 34 C.M.R. 57, 62 (1963).




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United States v. Gibson, No. 02-0443/AR


      We review de novo the issue whether the error was harmless.

See United States v. Pablo, 53 M.J. 356, 359 (C.A.A.F. 2000).

The Government has the burden of persuasion.        Id.
      An erroneous failure to give an accomplice instruction is

non-constitutional error.       See United States v. Laing, 889 F.2d

281, 287 (D.C. Cir. 1989); United States v. Bernal, 814 F.2d 175,

184 (5th Cir. 1987).      Accordingly, the test for harmlessness is

whether the instructional error had “substantial influence” on

the findings.     If it did, or if we are “left in grave doubt, the

conviction cannot stand.”       Kotteakos v. United States, 328 U.S.
750, 765 (1946).

      In this case, the requested instruction was correct, thus

meeting the first prong of the Damatta-Olivera test for

instructional error.      There is no dispute between the parties

regarding the first prong.

      We hold that the second prong is also met.       In so holding,

we reject the Government’s argument that the military judge’s

instructions substantially covered the “critical principles” of

the accomplice instruction.       The instruction on the elements of
conspiracy said nothing about the weight to be given to the

testimony of a co-conspirator.        There was no mention of

“caution.”    The instruction on the grants of immunity merely

informed the members that PV1 Tarbox, PV1 Lund, and PV1 Ashby had

been given immunity and that the members should consider the

grants of immunity in assessing their credibility.        Neither of

these instructions pertained to or mentioned PV1 Oie’s testimony.

      The general instruction on credibility told the members to

consider the relationship each witness may have had to each side,


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United States v. Gibson, No. 02-0443/AR


and how each witness might be affected by the verdict.     The

members heard evidence about PV1 Oie’s relationships with both

PV1 Armann and appellant, but they knew nothing about PV1 Oie’s

opportunity to parlay her testimony against Appellant into a

reduced sentence.     The military judge concluded that “there was

no evidence that any of [the witnesses] had anything to gain.”

      We hold that the third prong also is met.    The thrust of the

defense was to discredit the Government’s witnesses.     The

military judge’s refusal to give the accomplice instruction

“seriously impaired” the defense by depriving it of a powerful

instruction that would have required the members to consider the

Government’s evidence with caution, because of the potential for

false testimony motivated by self-interest in obtaining leniency

or immunity from prosecution.

      Testing for prejudice, we hold that the Government has not

carried its burden of persuading us that the error was harmless

with respect to the conspiracy charge.     There was no significant

conflict in the evidence regarding the facts.     The conflict

involved interpretation of those facts.    The court members were

required to decide whether Appellant engaged in idle, marijuana-

induced chatter, or serious planning; whether appellant was play-

acting at the rest stop or engaged in a serious dry run of a

murder plan; and whether Appellant’s disparaging comments about

PV1 Armann’s plans were ridicule or serious critique designed to

cure flaws in the plan.

      The key witness in this case was PV1 Oie, as evidenced by

the Government’s argument and the court members’ request that she

be recalled.    A cautionary instruction would have alerted the


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United States v. Gibson, No. 02-0443/AR


members to consider whether PV1 Oie’s, PV1 Lund’s, and PV1

Tarbox’s characterizations of Appellant’s actions were colored by

their desire to minimize their culpability or obtain leniency at

Appellant’s expense.      We are “left in grave doubt,” regarding the

effect of the instructional error on Appellant’s conviction of

conspiracy.    Kotteakos, 328 U.S. at 765.    Accordingly, we must

set aside Appellant’s conviction of conspiracy and the sentence.

      However, with respect to the drug offenses and the false

official statement, we hold that the error was harmless.      PV1

Oie’s testimony regarding the drug offenses was corroborated by

the physical evidence seized from her room and Appellant’s oral

confession to SA Fitgerald.       The false official statement to the

CID was established by Appellant’s written statement denying any

knowledge of the identity of the shooter and the uncontested

evidence that he told SGT Chapman that “they got her good in the

neck.”

                                  Decision
      So much of the decision of the United States Army Court of

Criminal Appeals as affirms Appellant’s conviction of Charge I
and its specification (conspiracy to murder PFC Bell) and the

sentence is reversed.      In all other respects, the decision below

is affirmed.    The record of trial is returned to the Judge

Advocate General of the Army for remand to the Court of Criminal

Appeals.    That court may authorize a rehearing on the Charge I

and its specification and the sentence, or it may dismiss Charge

I and its specification and either reassess the sentence or order

a sentence rehearing.      Thereafter, Article 67, UCMJ, 10 U.S.C. §

867 (2002) will apply.


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