                       UNITED STATES, Appellee

                                    v.

                  Bradley K. RHODES, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 04-0336

                         Crim. App. No. 34697

       United States Court of Appeals for the Armed Forces

                       Argued February 25, 2005

                     Decided September 19, 2005

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD and ERDMANN, JJ., each
filed a separate opinion concurring in part and dissenting in
part.
                             Counsel

For Appellant: Major Andrew S. Williams (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Major James M.
Winner (on brief); Colonel Beverly B. Knott, and Major Antony B.
Kolenc.

For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs, and
Major John C. Johnson (on brief); Colonel LeEllen Coacher.

Military Judge:   David F. Brash

       This opinion is subject to revision before final publication.
     Chief Judge GIERKE delivered the opinion of the Court.

                            INTRODUCTION

     Senior Airman (SrA) John Daugherty made a confession that

implicated both himself and Appellant in drug offenses.   About

five months after confessing, SrA Daugherty spoke to Appellant

and Appellant’s defense counsel, then signed an affidavit

claiming he no longer remembered Appellant’s involvement in the

offenses.   He testified at Appellant’s trial and was subject to

cross-examination, but continued to claim a lack of memory.

This appeal concerns whether the admission of his confession

violated Appellant’s confrontation rights or the bar against

hearsay evidence.   We hold that Appellant’s confrontation rights

were satisfied because SrA Daugherty took the stand and was

subject to cross-examination.   We also hold that his confession

was properly admitted under the hearsay exception for statements

against interest.   But we reverse the affected findings and the

sentence because the military judge erroneously allowed the

Government to suggest that Appellant was at fault for SrA

Daugherty’s memory loss.1




1
  We heard oral argument in this case at the University of North
Dakota School of Law, Grand Forks, North Dakota, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003).


                                 2
                              BACKGROUND

     At his court-martial, Appellant entered mixed pleas.       The

charges and specifications at issue in this appeal alleged

violations of Article 112a of the Uniform Code of Military

Justice (UCMJ)2 by using and possessing psilocyn and introducing

it onto a military base.   Appellant pleaded not guilty to these

offenses.3   A general court-martial panel found Appellant guilty

of the specifications alleging use and possession.    The members

found Appellant not guilty of the introduction specification.

The United States Air Force Court of Criminal Appeals affirmed

the court-martial’s results in an unpublished opinion.4    We

granted review to determine whether a Government witness’s

pretrial statement implicating Appellant was properly admitted

into evidence and whether uncharged misconduct evidence was

erroneously admitted.5

     As the Air Force Court observed, “This case arose from an

investigation of drug abuse at Yokota Air Base, Japan, involving

several military members.”6    SrA Daugherty was interrogated by

the Air Force Office of Special Investigation (OSI) agent as

part of that investigation.    He made a five-page handwritten


2
  10 U.S.C. § 912a (2000).
3
  Appellant pleaded guilty to larceny and disorderly conduct.
4
  United States v. Rhodes, No. ACM 34697, 2004 CCA LEXIS 42, 2004
WL 388964 (A.F. Ct. Crim. App. Feb. 24, 2004).
5
  United States v. Rhodes, 60 M.J. 378 (C.A.A.F. 2004)(order
granting review).
6
  Rhodes, 2004 CCA LEXIS 42, at *2, 2004 WL 388964, at *1.

                                  3
confession that admitted using illegal drugs, including

psilocyn, which is “a hallucinogenic contained in a particular

kind of dried mushroom that is a Schedule I controlled

substance.”7    In the confession, SrA Daugherty described buying

ten bags of “mushrooms.”    He wrote that “[a] guy named Brad was

with me.”    SrA Daugherty later identified “Brad” as Appellant.

The confession stated that “Brad” and his girlfriend took three

of the bags, ate about half of one bag, and kept the rest.

       SrA Daugherty later testified that the following events

occurred four-and-a-half months after his confession.    Appellant

approached him in SrA Daugherty’s quarters and asked SrA

Daugherty to speak with his defense counsel.    SrA Daugherty

testified that when he asked why, Appellant replied that he

could not tell him.    SrA Daugherty also testified that Appellant

neither suggested he should forget what happened nor asked him

to lie.    Appellant gave SrA Daugherty the area defense counsel’s

telephone number.    SrA Daugherty called and spoke to the area

defense counsel over the telephone.    SrA Daugherty later went to

the defense counsel’s office, unaccompanied by Appellant.    At

the defense counsel’s office, SrA Daugherty signed an affidavit

claiming that he no longer remembered the details of the


7
    2004 CCA LEXIS 42, at *3, 2004 WL 388964, at *1.




                                  4
mushroom purchase.   The affidavit specifically stated, “It was

likely that Brad never did go with me” to purchase mushrooms.

SrA Daugherty testified that no defense counsel stated or

implied that he should not tell the truth.   SrA Daugherty also

testified that he and Appellant never discussed the affidavit

after he executed it.

     To place the events in their temporal order, we note that

Appellant’s alleged psilocyn use and possession occurred around

December 1999 to January 2000.   SrA Daugherty confessed on July

21, 2000.   SrA Daugherty’s affidavit claiming that he no longer

remembered Appellant’s involvement in the offenses was dated

December 6, 2000.    Appellant’s court-martial then occurred in

late March and early April of 2001.

     At trial, the Government filed a motion in limine seeking a

ruling on the admissibility of SrA Daugherty’s confession.    The

defense also filed a motion in limine seeking to exclude any

evidence suggesting that Appellant “was charged with or

otherwise suspected of obstructing justice in regards to . . .

SrA John Daugherty.”

     During a hearing on the motions, both SrA Daugherty and the

OSI agent who interrogated him testified.    SrA Daugherty stated

that he was “sure” he was telling the truth when he confessed,

but he claimed to “have forgotten” most of the events that his

confession describes.   He also testified that he no longer



                                  5
remembered whether Appellant went with him to purchase the

mushrooms.    The military judge summarized SrA Daugherty’s

testimony with the observation that while he remembered some of

his own misconduct, he claimed to no longer “remember any drug

use or involvement that could be attributable” to Appellant.

       When the military judge asked SrA Daugherty what he thought

the consequences of his confession would be, his immediate

response was “Leavenworth.”    He later explained that he thought

there was a “very good possibility” that he would be confined as

a result of his confession.

       The military judge made what the Air Force Court aptly

called “extensive findings of fact and conclusions of law.”8      He

ruled that SrA Daugherty’s confession was admissible under

Military Rule of Evidence (M.R.E.) 804(b)(3) as a statement

against interest, but attached five conditions to the

Government’s use of the evidence.     First, the military judge

required that if the Government introduced the statement, it

must also introduce SrA Daugherty’s affidavit claiming a lack of

memory and the possibility that Appellant had not accompanied

him when SrA Daugherty purchased mushrooms.    Second, the

Government was required to introduce the declaration during SrA

Daugherty’s testimony.    Third, the military judge precluded the

Government from introducing any statements SrA Daugherty made


8
    2004 CCA LEXIS 42, at *4, 2004 WL 388964, at *2.

                                  6
during his interrogation other than those in his handwritten

confession.    Fourth, the military judge gave the defense the

discretion to question either SrA Daugherty or the Air Force OSI

agent who took his confession about the interrogation.    And

fifth, if the defense were to introduce any part of the

interrogation into evidence, the Government would be permitted

to introduce the remainder.

       The military judge also denied the defense’s motion to

preclude evidence suggesting that Appellant had obstructed

justice by asking SrA Daugherty to change his testimony.    The

military judge applied the three-part test established by United

States v. Reynolds9 to determine the evidence’s admissibility

under M.R.E. 404(b).    The military judge first found that there

was adequate circumstantial evidence to allow the members to

reasonably find that Appellant sought to influence SrA

Daugherty’s testimony.    The military judge also found that any

attempt by Appellant to influence SrA Daugherty’s testimony was

relevant because it exhibited consciousness of guilt concerning

the mushroom incident.    Finally, the military judge determined

that the evidence’s probative value was not substantially

outweighed by the danger of unfair prejudice.   This conclusion

was based, in part, on the military judge’s decision to give a

tailored instruction informing the members that an accused has a


9
    29 M.J. 105 (C.M.A. 1989).

                                  7
right to assist in his own defense and that “there is nothing

improper per se in an accused meeting with potential witnesses

and arranging meetings for them with his lawyer.”

       During his opening statement, the trial counsel discussed

SrA Daugherty’s claimed inability to remember Appellant’s

involvement in the offenses.    The trial counsel told the members

that “the accused asked Airman Daugherty to go see his lawyer.

You’re going to hear that within hours, Airman Daugherty lost

his memory.”    The trial counsel contended that while “Airman

Daugherty will tell you that his loss of memory of all these

incidents has nothing to do with the visit of the accused[,]

[t]he evidence will demonstrate differently.    The evidence will

prove that the accused encouraged in some fashion Airman

Daugherty to forget this evidence.”    The trial counsel told the

members that “[t]his is consciousness of guilt.”

       SrA Daugherty testified during the Government’s case.     SrA

Daugherty “identified his hand-written confession and testified

that he gave the statement under oath.”10    But he testified “that

he could no longer remember the incidents in question.

Significantly, however, he testified that he was sure the

contents of his confession were true at the time he made them.”11

He also stated that his memory would have been better when he



10
     Rhodes, 2004 CCA LEXIS 42, at *5-*6, 2004 WL 388964, at *2.
11
     2004 CCA LEXIS 42, at *6, 2004 WL 388964, at *2.

                                  8
made the statement than it was at trial.12    SrA Daugherty “also

admitted that he went out socially with the appellant on

Christmas Eve, a few weeks after making the affidavit declaring

his lack of recall.”13   The Government also “introduced into

evidence SrA Daugherty’s written confession and his affidavit

professing a lack of memory.”14   The trial defense counsel then

“cross-examined SrA Daugherty at length.”15    During this cross-

examination, the defense counsel “attacked SrA Daugherty’s

ability to perceive and recall, his prior drug use, his bias,

and his motivation for making the statement.    SrA Daugherty

continued to assert that he could not remember the details of

the events, but that he did not lie in his statement to

investigators.”16

       Before counsel made their closing arguments, the military

judge instructed the members concerning the “[e]vidence that the

accused may have contributed to Senior Airman Daugherty’s lack

of present memory.”   He told the members that this evidence “may

be considered by you for the limited purpose of its tendency, if

any, to show the accused’s awareness of his guilt of the

psilocyn allegations.”   The military judge then cautioned the

members that:


12
     Id.
13
     Id.
14
     Id.
15
     Id.
16
     Id.

                                  9
     [A]n accused has a right to assist in his own defense.
     This right includes the ability to assist his counsel
     in securing evidence and witnesses for use in the
     defense of the case. An accused may also interview
     witnesses and request that witnesses meet with the
     defense counsel. In sum, there is nothing improper
     per se in an accused meeting with potential witnesses
     and arranging meetings for them with his lawyer.

          If you find that the accused did indeed influence
     Senior Airman Daugherty, you may not consider this
     evidence for any other purpose and you may not
     conclude from this evidence that the accused is a bad
     person or has criminal tendencies and that he,
     therefore, committed the offenses charged.

     During his closing argument, the trial counsel referred to

Appellant’s “sham visit” to SrA Daugherty.   The trial counsel

elaborated:

     [T]he accused went on a personal visit here to meet
     with Airman Daugherty. And, inexplicably within hours
     of that meeting, within hours of that personal and up
     close invitation to go see his lawyer, Airman
     Daugherty’s memory goes poof and disappears. Members,
     I don’t know how to state the obvious any more
     clearly, but this unscrupulously, unusual visit. This
     preposterous memory loss could not be anymore
     indicative of the accused’s statement, an approach of,
     “I just wish we could have stuck together better.”
     Airman Daugherty and the accused came to an agreement
     of some sort, of some fashion; we may never know.
     But, there’s an agreement here somewhere to hang
     together or, as they say, hang separately. . . .
     Airman Daugherty, it was very clear, he is lying
     through his teeth on this alleged memory loss.

     As previously noted, the members ultimately found Appellant

guilty of the use and possession of psilocyn.




                               10
                              DISCUSSION

     A.   Confrontation

     The first issue before us is whether the admission of SrA

Daugherty’s statement violated Appellant’s Sixth Amendment right

“to be confronted with the witnesses against him.”17    It did not

because SrA Daugherty took the stand, testified, and was subject

to cross-examination, thereby satisfying Appellant’s

confrontation right.

     This issue is controlled by the Supreme Court’s opinion in

United States v. Owens.18    In Owens, the Supreme Court held that

the Confrontation Clause guarantees only “an opportunity for

effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense

might wish.”19    The Supreme Court observed that the “opportunity”

for cross-examination “is not denied when a witness testifies as

to his current belief but is unable to recollect the reason for

that belief.”20    Rather, “[i]t is sufficient that the defendant

has the opportunity to bring out such matters as the witness’

bias, his lack of care and attentiveness, his poor eyesight, and




17
   U.S. Const. amend. VI.
18
   484 U.S. 554 (1988).
19
   Id. at 559 (alteration in original) (quoting Kentucky v.
Stincer, 482 U.S. 730, 739 (1987)).
20
   Id.

                                  11
even (what is often a prime objective of cross-examination) the

very fact that he has a bad memory.”21       The Court reasoned:

       If the ability to inquire into these matters suffices
       to establish the constitutionally requisite
       opportunity for cross-examination when a witness
       testifies as to his current belief, the basis for
       which he cannot recall, we see no reason why it should
       not suffice when the witness’ past belief is
       introduced and he is unable to recollect the reason
       for that past belief.22

The Court added that “[t]he weapons available to impugn the

witness’ statement when memory loss is asserted will of course

not always achieve success, but successful cross-examination is

not the constitutional guarantee.        They are, however, realistic

weapons . . . .”23

       The Supreme Court’s later decision in Crawford v.

Washington24 is consistent with the Owens holding.       In Crawford,

the Supreme Court reiterated that “when the declarant appears

for cross-examination at trial, the Confrontation Clause places

no constraint at all on the use of his prior testimonial

statements.”25

       The defense seeks to rely on a statement in footnote 9 of

the Crawford opinion that the Confrontation Clause “does not bar

admission of a statement so long as the declarant is present at



21
     Id.   (internal citations omitted).
22
     Id.
23
     Id.   at 560.
24
     541   U.S. 36 (2004).
25
     Id.   at 59 n.9.

                                    12
trial to defend or explain it.”26        Contrary to Appellant’s

argument, footnote 9 of Crawford did not sub silentio overrule

Owens by using the phrase “to defend or explain it.”        As Owens

makes clear, the declarant’s explanation may be that he or she

has no recollection of the underlying event, and the defense can

meaningfully confront a witness who claims such a lack of

memory.

     Several courts have held that Justice Scalia’s opinion for

the Court in Crawford did not overrule Justice Scalia’s opinion

for the Court in Owens.27    We agree.     Because SrA Daugherty

testified in this case and was cross-examined by the defense

counsel, there was no Confrontation Clause violation.

     B.     Statement Against Interest

     Having determined that the admission of SrA Daugherty’s

statement did not violate the Confrontation Clause, we must now

determine whether it was properly admitted under the hearsay

exception for statements against interest.

     It seems counterintuitive that a witness who professes no

memory of an event described in an earlier statement is

available for confrontation purposes but unavailable for hearsay

purposes.    Yet that is the law.    M.R.E. 804 provides certain


26
  Id.
27
  See, e.g., People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.
2004); Mercer v. United States, 864 A.2d 110, 114 n.4 (D.C.
2004); People v. Sharp, 825 N.E.2d 706 (Ill. App. Ct. 2005).



                                    13
hearsay exceptions where the declarant is unavailable.      That

rule expressly defines “unavailability” to include situations

where the declarant “testifies to a lack of memory of the

subject matter of the declarant’s statement.”28     So SrA Daugherty

was “unavailable” for purposes of M.R.E. 804(b)(3).     That rule

permits the admission of a “statement against interest,” which

includes a statement that “so far tended to subject the

declarant to . . . criminal liability . . . that a reasonable

person in the position of the declarant would not have made the

statement unless the person believed it to be true.”29

     As the Air Force Court correctly observed, “The rule ‘is

founded on the commonsense notion that reasonable people, even

reasonable people who are not especially honest, tend not to

make self-inculpatory statements unless they believe them to be

true.’”30    But courts must be cautious when considering

statements offered under this hearsay exception.     “Only those

statements that are truly self-inculpatory are admissible under

this rule.    Statements that are not self-inculpatory are not

admissible, even if they are included ‘within a broader

narrative that is generally self-inculpatory.’”31     As the United


28
   M.R.E. 804(a)(3).
29
   M.R.E. 804(b)(3).
30
   Rhodes, 2004 CCA LEXIS 42, at *9, 2004 WL 388964, at *4
(quoting Williamson v. United States, 512 U.S. 594, 599 (1994)).
31
   2004 CCA LEXIS 42, at *10, 2004 WL 388964, at *4 (quoting
Williamson, 512 U.S. at 600-01).



                                  14
States Court of Appeals for the Seventh Circuit has observed,

“Portions of inculpatory statements that pose no risk to the

declarants are not particularly reliable; they are just garden

variety hearsay.”32

       The Supreme Court has stressed that “whether a statement is

self-inculpatory or not can only be determined by viewing it in

context.”33    So the admissibility of a statement against interest

must be evaluated “in light of all the surrounding

circumstances.”34

       We agree with the Air Force Court’s well-reasoned

conclusion that under the circumstances of this case, the

portions of SrA Daugherty’s confession that implicated Appellant

were self-inculpatory.    As Justice Scalia noted in his

concurring opinion in Williamson, “a declarant’s statement is

not magically transformed from a statement against penal

interest into one that is inadmissible merely because the

declarant names another person or implicates a possible

codefendant.”35

       The portions of SrA Daugherty’s confession in which he

admitted buying psilocyn mushrooms, taking them onto base, using

them, and providing them to others were clearly self-



32
     Carson v. Peters, 42 F.3d 384, 386 (7th Cir. 1994).
33
     Williamson, 512 U.S. at 603.
34
     Id. at 604.
35
     Id. at 606 (Scalia, J., concurring).

                                  15
incriminatory.36    SrA Daugherty also implicated himself in the

portions of his confession discussing Appellant’s misconduct.

As the Air Force Court concluded, the confession’s “references

to ‘Brad’ (the appellant) and his girlfriend were . . . self-

inculpatory” for five reasons.37    First, “they would lead

investigators to other witnesses to the crimes, necessary for

corroboration of the confession.”38     Second, SrA Daugherty “knew

that his friends were under investigation before making the

statement, thus he would know that statements admitting his

connection with them would link him to their crimes.”39       Third,

“each distribution was potentially a separate offense, so that

including ‘Brad’ as a recipient of the psilocyn mushrooms was

directly incriminating to the declarant.”40     Fourth, “each

statement demonstrates that the declarant was guilty as a

principal of the use and possession offenses of the others named

in the confession.”41    Finally, “the circumstances do not

indicate that the statements were actually self-serving.        The

tenor of the statements does not suggest that they were made in

an attempt to minimize the declarant’s culpability, or to shift




36
     Rhodes, 2004 CCA LEXIS 42, at *12-*13, 2004 WL 388964, at *5.
37
     2004 CCA LEXIS 42, at *13, 2004 WL 388964, at *5.
38
     Id.
39
     Id.
40
     Id.
41
     Id.

                                   16
blame to the appellant or others.”42     Rather, SrA Daugherty made

the statements due to “resignation and remorse.”43

       In Williamson, the Supreme Court emphasized that “[t]he

question under Rule 804(b)(3) is always whether the statement

was sufficiently against the declarant’s penal interest ‘that a

reasonable person in the declarant’s position would not have

made the statement unless believing it to be true.’”44       We agree

with the military judge and the Air Force Court that the

portions of SrA Daugherty’s confession that implicated Appellant

satisfied that test.    The military judge did not abuse his

discretion by admitting the confession into evidence.

       C.   Uncharged Misconduct

       Shortly before SrA Daugherty executed an affidavit claiming

to have forgotten Appellant’s involvement in the psilocyn

mushroom purchase, Appellant had sought him out in his quarters

to ask him to speak with his defense counsel.     The final issue

in this case is whether the military judge erred by allowing the

Government to use this evidence to suggest that Appellant

obstructed justice.

       The admissibility of uncharged misconduct is governed by

the three-part Reynolds test.      That three-part test asks:

       1. Does the evidence reasonably support a finding by
       the court members that appellant committed prior

42
     Id.
43
     2004 CCA LEXIS 42, at *13-*14, 2004 WL 388964, at *5.
44
     512 U.S. at 603-04.

                                   17
     crimes, wrongs or acts?
     2. What “fact . . . of consequence” is made “more” or
     “less probable” by the existence of this evidence?
     3. Is the “probative value . . . substantially
     outweighed by the danger of unfair prejudice”?45

If any one of the three parts is not met, the evidence is not

admissible.46   Because we hold that the military judge clearly

abused his discretion in applying the third part of the Reynolds

test, we need not address the other two.

     Writing for the Second Circuit, Judge Friendly has

explained why a change in a witness’s recollection is, by

itself, insufficient to support an inference of wrongdoing by

the party who benefited from the change:

     If a witness who once professed testimonial knowledge
     favorable to the proponent denies this knowledge on
     the stand, the mind asks what caused the change and
     recognizes that wrongful pressure from the opponent
     might be the explanation. Intimidation of the witness
     would, of course, be independently relevant, and proof
     of this admissible. But mere failure of a witness to
     repeat a prior statement helpful to the proponent
     gives an exceedingly slight basis for drawing the
     inference. The first statement itself may have been
     wrong and the oath or the prospect of cross-
     examination may have led the witness spontaneously to
     correct it; if the opponent had spoken to the witness,
     he can as well have been asking information as giving
     directions; or the witness may simply have forgotten .
     . . .47

As Judge Friendly suggests, in any given case there may be

alternative explanations for a witness’s memory loss.


45
   Reynolds, 29 M.J. at 109 (citations omitted).
46
   United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992).
47
   Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281, 284 (2d
Cir. 1965) (internal citation omitted).

                                 18
       In this case, the evidence’s probativeness of misconduct by

Appellant is further undermined by SrA Daugherty’s testimony

that Appellant had nothing to do with his memory loss.    On the

one hand, the Government’s case on the psilocyn specifications

rested on SrA Daugherty’s confession and his in-court testimony

of forgetfulness that was necessary for the confession to be

admitted under M.R.E. 804.    SrA Daugherty’s testimony that he

was sure he was telling the truth when he confessed was also

highly damaging to the defense.    On the other hand, concluding

that Appellant was complicit in SrA Daugherty’s memory loss

would require disbelieving a portion of SrA Daugherty’s in-court

testimony.    Under the peculiar facts of this case, the military

judge clearly abused his discretion48 by concluding that the

memory loss’s probativeness as evidence of Appellant’s

consciousness of guilt was not substantially outweighed by the

danger of unfair prejudice.    It therefore failed the third part

of the Reynolds test for the admissibility of uncharged

misconduct evidence.

       We do not hold that the military judge erred by allowing

the Government to present evidence concerning Appellant’s

meeting with SrA Daugherty the day before SrA Daugherty signed

the affidavit claiming memory loss.    This evidence provided the

members with important background information concerning SrA


48
     See United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000).

                                  19
Daugherty’s claimed memory loss.       The fact that the meeting took

place was an appropriate matter for the members to consider.

For example, the meeting might have induced SrA Daugherty to

falsely claim loss of memory due to feelings of remorse over

betraying a friend.    But the military judge erred by admitting

the evidence for the improper purpose of demonstrating

consciousness of guilt rather than for the proper purpose of

evaluating the truthfulness of SrA Daugherty’s claim of memory

loss.

        The military judge compounded this error by instructing the

members that they could consider this evidence “for the limited

purpose of its tendency, if any, to show the accused’s awareness

of his guilt of the psilocyn allegations.”      “When evidence is

admitted under Rule 404(b), the [members] must be clearly,

simply, and correctly instructed concerning the narrow and

limited purpose for which the evidence may be considered.”49

Here, the military judge’s instructions allowed the members to

consider the evidence for an impermissible purpose.

        Having determined that the military judge erred by allowing

the Government to use this evidence to suggest Appellant’s

consciousness of guilt, we must determine whether that error

prejudiced Appellant.    “Where error is founded on a violation of



49
  United States v. Jobson, 102 F.3d 214, 222 (6th Cir. 1996)
(internal quotation marks and citation omitted)).

                                  20
Rule 404(b), the test for harmlessness is ‘whether we can say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.’”50     As we apply this

standard, the defense must initially meet the “threshold burden

of showing that an error has occurred which is ‘of such a

character that its natural effect is to prejudice a litigant’s
                        51
substantial rights.’”        The burden then “shifts to the

Government to persuade us that the error was harmless.”52

Because we conclude that the error might have swayed the members

concerning the psilocyn use and possession specifications, we

must reverse the members’ findings as to those specifications.

     The “natural effect” of the way the trial counsel used the

uncharged misconduct evidence case was certainly prejudicial.

The Government used the evidence to suggest Appellant’s guilt of

the underlying offense and the military judge’s instructions

expressly allowed the members to use the evidence for that

purpose.   Additionally, the Government’s case concerning the

psilocyn mushroom offenses rested almost solely on SrA

Daugherty’s pretrial statement.     So the Government’s case was


50
   United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994)
(quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.
1980)); see Kotteakos v. United States, 328 U.S. 750, 765
(1946).
51
   United States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)
(quoting Kotteakos, 328 U.S. at 760).
52
   Id.

                                   21
certainly not overwhelming.   The suggestion that Appellant

suborned perjury could have been crucial to the outcome.

Finally, the trial counsel extensively used the alleged

uncharged misconduct in both opening statement and closing

argument.   Accordingly, the Government has not carried its

burden to persuade us that the erroneous use of this evidence

was harmless.

                              DECISION

     The portions of the United States Air Force Court of

Criminal Appeals’ decision affirming the findings of guilty to

the Charge and its specification (use of psilocyn),

specification 2 of Additional Charge I (possession of psilocyn),

and the sentence are reversed.   Those findings and the sentence

are set aside.   The portions of the Air Force Court of Criminal

Appeals’ decision affirming the findings of guilty to Additional

Charges II and III and their specifications (larceny and

disorderly conduct) are affirmed.     The record is returned to the

Judge Advocate General of the Air Force.    A rehearing on the

Charge and its specification and specification 2 of Additional

Charge I and the sentence is authorized.    If a rehearing on

these charges and specifications is not practicable, a rehearing

on the sentence for the affirmed findings may be held.




                                 22
United States v. Rhodes, No. 04-0336/AF


     CRAWFORD, Judge (concurring in part and dissenting in

part):

     Although I concur with the majority on Issues I and II, I

respectfully dissent on Issue III.     While I concur with Judge

Erdmann’s conclusion that the military judge did not abuse his

discretion by admitting the evidence of uncharged misconduct, I

write separately to emphasize the important jurisprudential

considerations underlying this Court’s test in United States v.

Reynolds, 29 M.J. 105 (C.M.A. 1989).

                               FACTS

     The relevant facts in this case are as follows.     A key

Government witness, Senior Airman (SrA) Daugherty, produced a

hand-written statement to Office of Special Investigations (OSI)

implicating Appellant with regards to illegal drug use and

possession.   Four-and-a-half months later, SrA Daugherty was

personally approached in his quarters by Appellant.    On the

following day, it was discovered by Appellant’s defense counsel

that Daugherty was suffering from memory loss and could no

longer attest to the accuracy of his original confession.    In a

new affidavit prepared by defense counsel, SrA Daugherty

recanted, stating:   “It was likely that [Appellant] never did go

with me” to purchase drugs.   In response, the Government sought

to introduce evidence that Appellant influenced the witness --

primarily that Appellant met with him just prior to the claimed
United States v. Rhodes, No. 04-0336/AF


memory loss.   Ultimately, the judge admitted this evidence

pursuant to Military Rule of Evidence (M.R.E.) 404(b), which is

exactly the same as Federal Rule of Evidence (Fed. R. Evid.)

404(b).   The Government argued to the members that Appellant

obstructed justice by influencing SrA Daugherty, and that such

acts were indicative of Appellant’s consciousness of guilt.

Appellant was subsequently convicted of drug use and possession.

The issue at hand questions the military judge’s decision to

admit evidence of Appellant’s undue influence on the witness.

                            DISCUSSION

     When determining admissibility, the military judge

correctly applied the test set forth in Reynolds, which

requires, in this case, that (1) the evidence reasonably

supports a finding that Appellant committed prior crimes,

wrongs, or acts, (2) that the evidence increases the likelihood

that Appellant is guilty of the drug offenses brought against

him, and (3) the probative value of the evidence is not

substantially outweighed by unfair prejudice.

     Our Reynolds opinion was decided after Huddleston v. United

States, 485 U.S. 681 (1988), but interestingly enough, did not

directly cite Huddleston.

     Huddleston provides that “Rule 404(b) . . . evidence is

relevant only if the jury can reasonably conclude that the act




                                 2
United States v. Rhodes, No. 04-0336/AF


occurred and that the defendant was the actor.”   Id. at 689.

This is the first prong of our Reynolds test.

     The second prong of Reynolds does not deviate from

Huddleston.   “The threshold inquiry . . . is whether that

evidence is probative of a material issue other than character.”

Id. at 686.   The Court goes on to recognize that Fed. R. Evid.

401 and 402 (like M.R.E. 401 and 402) “establish the broad

principle that relevant evidence -- evidence that makes the

existence of any fact at issue more or less probable -- is

admissible unless the Rules provide otherwise.”   Id. at 687.

     The third prong of Reynolds is likewise discussed in

Huddleston.   In its discussion of the danger of undue prejudice,

the Supreme Court stated, “The House made clear that the version

of Rule 404(b) which became law was intended to ‘plac[e] greater

emphasis on admissibility than did the final Court version.’”

Id. at 688.   The Court continued:

     The Senate echoed this theme: “[T]he use of the
     discretionary word ‘may’ with respect to the
     admissibility of evidence of crimes, wrongs, or other
     acts is not intended to confer any arbitrary
     discretion on the trial judge.” S. Rep. No. 93-1277,
     . . . at 24. Thus, Congress was not nearly so
     concerned with the potential prejudicial effect of
     Rule 404(b) evidence as it was with ensuring that
     restrictions would not be placed on the admission of
     such evidence.

Id. at 688-89.




                                 3
United States v. Rhodes, No. 04-0336/AF


     When using the Reynolds test, it is necessary to recognize

the difference between the factual relevance prong (Prong I) and

the legal relevance prong (Prong III).    While Prong I is meant

to determine the sufficiency of the evidence, Prong III is meant

to weigh the evidence’s potential unfair prejudice.   It is easy

to confuse the sufficiency of the evidence (Prong I) with the

evidence’s probative value (Prong III).   It is therefore

necessary to reconsider the Reynolds test in full to lend

perspective to the majority opinion.

     Beginning with Prong I of the Reynolds test, the meeting

between Appellant and SrA Daugherty strongly suggests that

Appellant unduly influenced him to recant his original

statement.   Soon after their meeting, the witness forgot the

details of a hand-written statement, even while he and others

were being prosecuted based on the statement’s details.     Not

only did the witness forget a set of events that were seemingly

central and fresh in his mind, but this memory loss was also

discovered by defense counsel only a day after Appellant visited

SrA Daugherty.   Arguing that such facts are insufficient to

support a finding that Appellant influenced SrA Daugherty to

recant tests the bounds of coincidence when one considers the

details of the events, the timing of the visit, and the

subsequent lapse of memory.




                                 4
United States v. Rhodes, No. 04-0336/AF


     Nevertheless, the majority has misgivings about the

relevance of this evidence.      The majority posits an alternate

explanation for the memory loss, noting that the meeting might

have induced SrA Daugherty to recant “due to feelings of remorse

over betraying a friend.”   United States v. Rhodes, 61 M.J. at

___ (20) (C.A.A.F. 2005).   Aside from being unlikely, such

alternatives are irrelevant because “the trial court neither

weighs credibility nor makes a finding that the Government has

proved the conditional fact by a preponderance of the evidence.

The court simply . . . decides whether the jury could reasonably

find the conditional fact” -- here, that Appellant prompted the

witness to claim memory loss.     Huddleston, 485 U.S. at 782-83

(emphasis added); see also United States v. Mirandes-Gonzalez,

26 M.J. 411, 413-14 (C.M.A. 1988).      Indeed, M.R.E. 104(b) notes

that “[w]hen the relevancy of evidence depends upon the

fulfillment of a condition of fact, the military judge shall

admit it upon, or subject to, the introduction of evidence

sufficient to support a finding of the fulfillment of the

condition.”    Emphasis added.   The meeting between Appellant and

the witness is a strong circumstantial indication of undue

influence, and is clearly relevant under this standard.

Weighing the evidence against alternative explanations and

counter-evidence is inappropriate because such is the role of

the members.   Defense counsel’s arguments and use of contrary


                                    5
United States v. Rhodes, No. 04-0336/AF


testimony were simply unpersuasive, and it is not the place of

this Court to second-guess the members’ findings.

     Curiously, the majority uses a lengthy quotation from

Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir.

1965), to argue that the evidence is too speculative to be

admitted.   In Taylor, a civil action under the Federal

Employer’s Liability Act, a witness had originally provided a

statement in a way that benefited the plaintiff.    At trial five

years later, this same witness could not recall his original

statement -- a loss in memory that critically damaged the

plaintiff’s case.    In the opinion, Judge Friendly discussed the

plaintiff’s potential argument that the defendant tampered with

the witness:

     [I]f the opponent had spoken to the witness, he can as
     well have been asking information as giving
     directions; or the witness may simply have forgotten -
     - a fair possibility here, when over five years had
     intervened between the accident and the trial. The
     basis for an inference of intimidation is extremely
     weak as against the danger that if the statement is
     admitted, the jury will use it substantively
     regardless of what the judge may say.

Id. at 284.    Not only are the facts in Taylor distinguishable

from the present case, its holding also conflicts with the

majority decision.

     First, aside from being a Second Circuit civil case from

the 1960s, the facts in Taylor are critically different.     In

Taylor, the memory loss occurred over a period of five years, a


                                  6
United States v. Rhodes, No. 04-0336/AF


fact omitted by ellipsis from the majority’s quote.   61 M.J. at

__ (18).   Furthermore, Judge Friendly’s commentary did not

assume the present situation, where a meeting occurs immediately

prior to discovering the witness’s memory loss.   The present

case is not diluted by a five-year time span, during which facts

could be legitimately forgotten, and an opportunity to influence

the witness may not present itself.   On the contrary, Appellant

approached SrA Daugherty only four-and-a-half months after the

original written statement was made, and on the very next day

Daugherty recanted, claiming memory loss.   The majority’s

assertion, that “a change in a witness’s recollection is, by

itself, insufficient,” 61 M.J. at __ (18), disregards the highly

coincidental nature of the present case -- a scenario that Judge

Friendly wisely anticipated by limiting the Taylor decision to

its particular facts.   Finally, Judge Friendly’s opinion deals

with a fundamentally different question:    whether the witness’s

original statement should be introduced at all.   This Court has

no qualms with the introduction of SrA Daugherty’s original

confession to OSI.

     Second, the majority opinion is inconsistent with Taylor.

Under its set of facts, the court in Taylor would have found

evidence of witness tampering to be completely inadmissible due

to the risk of confusing the jury.    In contrast, the majority

creatively deems such evidence admissible while also condemning


                                 7
United States v. Rhodes, No. 04-0336/AF


its use in the Government’s arguments and the jury instruction.

While the meeting was “important background information” that

helps explain SrA Daugherty’s loss of memory, they would not

allow the Government or the jury to consider the notion that

Appellant actually caused the recantation.   Hence, the majority

would admit the same evidence described in Taylor but require

that nobody mention its obvious inference, thereby disregarding

Judge Friendly’s caution that “the jury will use [the evidence]

substantively regardless of what the judge may say.”    Id. at

284.   Considering its distinguishing characteristics and

apparent misapplication, Taylor sheds but a glimmer of guiding

light on the case at hand and only illustrates an extreme

instance where no circumstantial evidence existed from which to

infer undue witness influence.

       In sum, the first prong of the Reynolds test is satisfied

because evidence of a highly coincidental meeting between

Appellant and SrA Daugherty is relevant, and reasonably supports

the finding that Appellant influenced the recantation.

       While not actively disputed, the second prong of the

Reynolds test requires that the evidence increase the likelihood

that Appellant is guilty of the drug offenses brought against

him.   Here, the evidence indicates that Appellant was aware of

his wrongdoings and was attempting to influence a witness to

reach a favorable conclusion at trial.    Appellant’s


                                  8
United States v. Rhodes, No. 04-0336/AF


consciousness of guilt would make it more likely that he

committed the alleged drug offenses, and the second prong is

thereby satisfied.

     The third prong of the Reynolds test requires that evidence

be excluded if it is substantially more prejudicial than

probative.   See M.R.E. 403.    First, the probative value of the

meeting between Appellant and the witness is very high given the

nature of this case.   Generally, evidence of consciousness of

guilt is very probative and “second only to a confession in

terms of probative value.”     United States v. Meling, 47 F.3d

1546, 1557 (9th Cir. 1995).    In this case, such evidence is

critically important to the Government.    As the majority notes,

“the Government’s case concerning the psilocyn mushroom offenses

rested almost solely on SrA Daugherty’s pretrial statement.”      61

M.J. at __ (21).   Given the convenient and coincidental nature

of the memory loss, evidence suggesting that Appellant spoiled

SrA Daugherty’s statement is very probative and central to the

Government’s ability to prove guilt.

     Second, the risk of unfair prejudice is slight.    To analyze

prejudice, this Court must determine to what degree the evidence

may mislead, interfere with, or confuse the members in assessing

the principal charges.   See M.R.E. 403; United States v. Kinman,

25 M.J. 99 (C.M.A. 1987) (applying M.R.E. 403 to introduction of

uncharged misconduct evidence).    See also Taylor, 344 F.2d at


                                   9
United States v. Rhodes, No. 04-0336/AF


284.    Acts showing consciousness of guilt are unique from other

forms of uncharged misconduct in that they almost always

directly relate to the charges at hand -- which may explain why

it is difficult to articulate any true unfair prejudice in the

present case.    For example, there is little risk that the

members would believe that Appellant used or possessed drugs

simply due to a general propensity to obstruct justice.    Rather,

they would believe that Appellant is guilty of these offenses

because influencing SrA Daugherty to recant his original

statement is directly indicative of guilt in this particular

case.    The introduction of this evidence has little collateral

or prejudicial effect.    Furthermore, any remaining risk of

unfair prejudice was tempered by the military judge’s limiting

instruction, stating that “there is nothing improper per se in

an accused meeting with potential witnesses and arranging

meetings for them with his lawyer.”

        In applying the third prong of the Reynolds test, the

majority asserts that the prejudicial value of the meeting

substantially outweighs its probative value pursuant to M.R.E.

403.    M.R.E. 403 is a rule of evidence, not a rule of argument.

It speaks to the admissibility of the evidence alone.    The

majority applies the third prong against the “erroneous use of

this evidence” instead of its admission.    61 M.J. at __ (22)

(emphasis added).    It goes without saying that the use of


                                  10
United States v. Rhodes, No. 04-0336/AF


damaging evidence will be extremely prejudicial to the

defendant’s liberty interest, “as is most good prosecution

evidence.”   Reynolds, 29 M.J. at 109.   This does not make the

evidence itself unfairly prejudicial or inadmissible.     In the

present case, the meeting between Appellant and SrA Daugherty on

the day before his memory loss directly implies that Appellant

influenced him.   This evidence did not suddenly transform when

the Government argued this theory or when the military judge

used it in an instruction.

     While the meeting made Appellant appear more guilty in the

instant case -- as is the purpose of such evidence –- this is

not an example of unfair prejudice.   The evidence’s probative

value is not mitigated by the testimony of SrA Daugherty “that

Appellant had nothing to do with his memory loss.”   61 M.J. at

__ (19).   The testimony must be weighed against his prior

statements and in the context of his conversation with

Appellant.   SrA Daugherty’s testimony is an insufficient basis

for a legal conclusion of inadmissibility because the evaluation

of this conflicting evidence is left to members.   Thus, the

third prong of the Reynolds test is more than satisfied, as the

probative value of the evidence outweighs any potential

prejudice.

     I therefore agree that the military judge’s application of

the Reynolds-Huddleston test was not an abuse of discretion.       “A


                                11
United States v. Rhodes, No. 04-0336/AF


military judge’s ruling on admissibility of evidence . . . will

not be overturned on appeal ‘absent a clear abuse of

discretion.’”   United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F.

1997) (quoting United States v. Redmond, 21 M.J. 319, 326

(C.M.A. 1986)).    This Court’s split on this issue indicates that

reasonable minds can disagree on whether to allow such evidence

under these circumstances.   Even so, simple disagreement is not

sufficient to overturn the military judge’s decision:

     [A]n abuse of discretion involves far more than a
     difference in judicial opinion . . . The challenged
     action must . . . be found to be “arbitrary, fanciful,
     clearly unreasonable,” or “clearly erroneous” in order
     to be invalidated on appeal. If, on the other hand,
     reasonable [minds] could differ as to its propriety,
     then it cannot be said that the trial judge abused his
     discretion.

United States v. Glenn, 473 F.2d 191, 196 (D.C. Cir. 1972)

(internal citations omitted).   Accord United States v. Travers,

25 M.J. 61, 62-63 (C.M.A. 1987) (citing Glenn, 473 F.2d at 196).

This Court has recently stated that an abuse of discretion

occurs only when findings of fact are clearly erroneous, when

incorrect law is applied, or when the law is applied

incorrectly.    United States v. Roberts, 59 M.J. 323, 326

(C.A.A.F. 2004).   Here, the military judge’s decision is not an

abuse of discretion because the correct legal test was applied

against a set of undisputed facts.    The military judge concluded

that “the members could reasonably find that the uncharged



                                 12
United States v. Rhodes, No. 04-0336/AF


misconduct occurred” based on the circumstantial evidence, that

the evidence increased the probability of Appellant’s guilt,

that the probative value was high given the coincidental nature

of the memory loss, and that any risk of prejudice could be

cured by instruction.   While the conclusion drawn by the

military judge may differ from that of the majority, this is not

a basis for overturning the result.

     I would therefore affirm the judgment of the United States

Air Force Court of Criminal Appeals.




                                13
United States v. Rhodes, 04-0336/AF


     ERDMANN, Judge (concurring in part and dissenting in part):

     I concur in the resolution of Issues I and II regarding

Staff Sergeant Rhodes’s Sixth Amendment rights and the

admissibility of Senior Airman Daugherty’s statement under

Military Rule of Evidence (M.R.E.) 804(b)(3).   I write

separately because I cannot agree that the military judge abused

his discretion by admitting evidence of Rhodes’s uncharged

misconduct.

     The majority correctly asserts that evidence of uncharged

misconduct must be evaluated using the three-part test set out

in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989):

     1.   Does the evidence reasonably support a finding that
          appellant committed prior crimes, wrongs or acts?

     2.   What “fact of consequence” is made more or less
          probable by the existence of the evidence?

     3.   Is the probative value of the evidence substantially
          outweighed by the danger of unfair prejudice?

     Here, there was circumstantial evidence that Rhodes may

have played a role in Daugherty’s convenient memory loss.    At

first, Daugherty remembered Rhodes buying and taking drugs.

Later, following a personal visit from Rhodes, Daugherty told

defense counsel that he could no longer remember whether or not

Rhodes had been involved.   Presented with this evidence,

reasonable members could certainly conclude that Rhodes had

influenced Daugherty’s forgetfulness.
United States v. Rhodes, 04-0336/AF


     Next, to the extent that the members believed that Rhodes

influenced Daugherty to forget what he had written in his

confession to the Office of Special Investigations, that

evidence makes it more probable that Rhodes was guilty and was

trying to cover up his misdeeds.       The majority relies on Taylor

v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir. 1965), for

the proposition that this evidence was too speculative to

support an inference of wrongdoing.      In Taylor, a witness

provided a written statement prior to trial that he had seen a

particular accident.   At trial, however, he testified that “I

heard something, that’s all.”   Id. at 283.      The case did not

involve a complete memory loss of the event and there was no

evidence that a party to the lawsuit met with the witness

immediately prior to the memory loss.

     Ultimately, the admissibility of evidence concerning

Rhodes’s visit to Daugherty’s barracks room comes down to the

balancing test set out in M.R.E. 403 -– is the evidence

substantially more prejudicial than probative?      The question

here is not whether or not this court views the potential

prejudice to Rhodes as substantially outweighing the probative

value of the evidence.   The question is whether the military

judge’s conclusion that the evidence would not unduly inflame

the passions of the members or cloud their judgment was

arbitrary, fanciful, clearly unreasonable, clearly untenable or


                                   2
United States v. Rhodes, 04-0336/AF


clearly erroneous.   See United States v. Williams, 37 M.J. 352,

356 (C.M.A. 1993); United States v. Travers, 25 M.J. 61, 62

(C.M.A. 1987).

     This court has previously held that, “[a] military judge

abuses his discretion when his findings of fact are clearly

erroneous, when he is incorrect about the applicable law, or

when he improperly applies the law.”    United States v. Roberts,

59 M.J. 323, 326 (C.A.A.F. 2004).     There are no findings of fact

at issue here and there is no dispute that the military judge

used the correct legal test.   It is his application of the law

to the facts and his conclusion that the majority questions.

But as this court has previously explained, “To reverse for ‘an

abuse of discretion involves far more than a difference in . . .

opinion. . . .’”    Travers, 25 M.J. at 63 (quoting United States

v. Yoakum, 8 M.J. 763 (A.C.M.R. 1980), aff’d on other grounds, 9

M.J. 417 (C.M.A. 1980) (internal citation omitted).

     As Rhodes presented no evidence that the military judge

acted arbitrarily or reached a clearly untenable conclusion, I

conclude that the military judge’s decision fell within the

realm of his considerable discretion.    Accordingly, I would

affirm the decision of the United States Air Force Court of

Criminal Appeals.




                                  3
