United States v. Hall , 56 M.J. 432 ( 2002 )


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  •                         UNITED STATES, Appellee
    V.
    Jason W. HALL, Airman
    U.S. Air Force, Appellant
    No. 01-0418
    Crim. App. No. 33476
    United States Court of Appeals for the Armed Forces
    Argued October 25, 2001
    Decided May 2, 2002
    GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., and BAKER, J., joined. SULLIVAN, S.J.,
    filed an opinion concurring in part and in the result.
    EFFRON, J., filed a dissenting opinion.
    Counsel
    For Appellant: Major Maria A. Fried (argued); Lieutenant Colonel
    Beverly B. Knott and Lieutenant Colonel Timothy W. Murphy
    (on brief); Colonel James R. Wise and Major Stephen P. Kelly.
    For Appellee: Captain Christa S. Cothrel (argued); Colonel
    Anthony P. Datillo and Major Lance B. Sigmon (on brief);
    Major Bryan T. Wheeler and Major Linette I. Romer.
    Military Judge:    Gregory E. Michael
    This opinion is subject to editorial correction before final publication.
    United States v. Hall, No. 01-0418/AF
    Judge GIERKE delivered the opinion of the Court.
    A general court-martial convicted appellant, pursuant to his
    pleas, of assault consummated by a battery (two specifications)
    and dereliction of duty, in violation of Articles 128 and 92,
    Uniform Code of Military Justice, 10 USC §§ 928 and 892,
    respectively.     Contrary to his pleas, the court-martial, composed
    of officer and enlisted members, convicted appellant of unlawful
    distribution of anabolic steroids, in violation of Article 112a,
    UCMJ, 10 USC § 912a.      The adjudged and approved sentence provides
    for confinement for twelve months and reduction to the lowest
    enlisted grade.     The Court of Criminal Appeals affirmed the
    findings and sentence.      
    54 M.J. 788
    (2001).    This Court granted
    review of the following issue:
    WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS
    DISCRETION WHEN IT HELD THAT ALTHOUGH THE MILITARY JUDGE
    ERRED IN HIS DECISION NOT TO ADMIT A1C GILBERT’S TESTIMONY,
    THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
    For the reasons set out below, we affirm.
    Factual Background
    The factual issue in this case was entrapment.       The excluded
    testimony of Airman First Class (A1C) Richard Gilbert was offered
    in support of appellant’s entrapment defense.
    Senior Airman (SrA) Donald Stachum, an Air Force Security
    Policeman, testified that he and appellant lived in the same
    dormitory.    Both Stachum and appellant were interested in weight
    lifting.    They had conversations about certain professional
    weight lifters who used steroids and the effects they
    experienced.    Appellant showed Stachum a “steroid handbook” and
    told him that he had learned a lot about steroid use from the
    2
    United States v. Hall, No. 01-0418/AF
    book.   Appellant offered to loan the book to Stachum, and Stachum
    accepted.
    Stachum testified that sometime in mid-June 1998, appellant
    told him that he was “really cool” and offered to “connect [him]
    with a source.”     Stachum testified that he never asked appellant
    to sell steroids to him.       Stachum reported appellant’s offer to
    an agent of the Office of Special Investigations (OSI).
    Stachum testified that around the end of June, appellant
    told him that he had a friend who might be able to obtain some
    steroids for him.     Stachum reported this conversation to the OSI.
    The OSI told Stachum to keep them informed.
    Around the first of July, appellant told Stachum that his
    friend was probably willing to sell the steroids, but he was
    hesitant and did not want to get into trouble.       Stachum told
    appellant to let him know if the friend wanted to make the sale.
    Stachum reported this conversation to the OSI.       On about July 8,
    the OSI arranged for Stachum to make a controlled buy.
    Stachum testified that on the afternoon of July 8, he asked
    appellant if he had talked to his friend.       Appellant responded
    that he would talk to his friend on the following morning.        At
    about 4:30 p.m. on July 9, appellant told Stachum, “[I]f you want
    to buy the steroids, it has to happen at 1900 hours tonight.”
    Appellant told Stachum that “[h]is friend was extremely paranoid,
    wanted to get rid of it, and didn’t want to use it anymore.”
    Stachum testified that he tried to postpone the transaction until
    the following morning, but appellant insisted “no, if it’s going
    to happen, it has to happen tonight.”       Appellant wanted to
    conduct the transaction in the dormitory, and he wanted Stachum
    3
    United States v. Hall, No. 01-0418/AF
    to “take a shot of the steroids to prove that [he] wasn’t going
    to bust him.”
    The OSI told Stachum that the transaction could not be in
    the dormitory, because they would be unable to keep constant
    surveillance.     Stachum told appellant that he did not want to
    conduct the transaction on base, that he did not trust him, and
    that he felt more comfortable off base.
    Stachum testified that appellant told him he wanted to use
    the steroids with him for a week.           Stachum replied that he would
    bring them to the dormitory but would not leave them in his
    dormitory room.     Appellant reiterated that he wanted Stachum to
    “take a shot” immediately after the transaction.          Stachum
    testified that appellant told him one of the conditions for the
    transaction was that appellant could use them.
    The transaction ultimately took place off-base, behind a
    church, where Stachum purchased the steroids with $120 in marked
    money.   As Stachum and appellant drove toward the base, Stachum
    signaled the OSI.     The OSI surrounded their vehicle, ordered both
    appellant and Stachum to get out of the vehicle, and handcuffed
    them.
    A1C Phillip Hillhouse, a close friend of appellant, was the
    source of the steroids.       He testified that he purchased them in
    his hometown.     He testified that when he told appellant he
    intended to buy some steroids, appellant indicated that “if he
    had money, he would probably want me to buy some.”          Hillhouse
    qualified the last statement, testifying, “I don’t have the 100%
    prove [sic] on that though.”
    4
    United States v. Hall, No. 01-0418/AF
    Hillhouse had only “basic knowledge” about steroid use, but
    found that appellant was “very knowledgeable.”            Appellant
    verified that Hillhouse had purchased the correct size syringes,
    and he showed Hillhouse how to correctly inject himself with the
    steroids.
    After using steroids for about two-and–a-half weeks,
    Hillhouse became “totally disgusted” with what he was doing to
    himself and decided to get rid of them.            He offered to sell them
    to appellant.     According to Hillhouse, “obviously he wanted
    them.”    Appellant offered to buy them and suggested a price of
    $120.    Hillhouse agreed.
    Appellant did not pay Hillhouse for the steroids
    immediately.    Hillhouse did not know how appellant intended to
    obtain the money to buy the steroids, and he did not know if
    appellant intended to sell them.            He understood that appellant
    wanted the steroids for personal use.
    Appellant admitted being knowledgeable about steroids.           He
    also admitted using steroids before joining the Air Force and
    admitted that he did not reveal his steroid use on his enlistment
    application.
    Appellant testified that he met Stachum shortly after he
    moved into the security police dormitory.            During the first month
    of his acquaintance with Stachum, they talked about weight
    lifting and body building, including use of steroids.            Appellant
    testified that about a month after he moved into the dormitory,
    Stachum asked him if he “could hook him up with some drugs.”
    Appellant responded that he did not know where to obtain them.
    Appellant testified that after that conversation, Stachum asked
    5
    United States v. Hall, No. 01-0418/AF
    him about obtaining steroids in “probably almost every
    conversation.”     He testified that Stachum’s initial requests did
    not bother him, but after a while, they became annoying, because
    he “had already told him no.”
    Appellant testified that after Hillhouse told him that he
    wanted to get rid of his steroids, appellant told Stachum that he
    could get him some steroids if he wanted them.      Asked why he made
    the offer to Stachum, appellant responded, “To get him off my
    back and to do a favor for two friends.”
    On cross-examination, appellant corroborated Stachum’s
    testimony that he insisted on completing the transaction on the
    evening of July 9.      He admitted offering to “front part of the
    cost” of the drugs when Stachum said he did not have enough
    money.   He admitted telling Hillhouse that he intended to share
    the steroids with Stachum.
    Regarding his intent to share the steroids, appellant
    testified on cross-examination as follows:
    Q. Okay. And before you left, you told [Hillhouse]
    that you and Donnie [Stachum] were going to use the
    drugs that night? Isn’t that true?
    A.   Yes, ma’am.
    Q. Because you intended on using those drugs, didn’t
    you?
    A.   Yes, ma’am.
    Q. And, in fact, part of the deal    that you were
    getting out of this is that Airman   Stachum would keep
    the drugs for you, and he would be   able to provide them
    for you whenever you wanted to use   them. Isn’t that
    true?
    A.   For one week, ma’am.
    6
    United States v. Hall, No. 01-0418/AF
    Q. Right. And Airman Stachum would be the one who
    would actually have to have possession of them, isn’t
    that true?
    A.   Yes, ma’am.
    Q. So, then if for some reason the drugs were found,
    Airman Stachum--they would be in Airman Stachum’s
    possession, isn’t that true?
    A.   Yes, ma’am.
    Q. And the whole time you intended on using those
    drugs. Isn’t that true?
    A.   Yes, ma’am.
    Q. So, part of the reason why you sold those drugs to
    Airman Stachum was so that you could use them. Isn’t
    that true?
    A. Yes, ma’am.
    *   *   *
    Q. And, in fact, after          the transaction had finally
    taken place, on the way         back to the gate, you told
    Airman Stachum that you         guys were going to use the
    drugs that night. Isn’t         that true?
    A.   Yes, ma’am.
    Q. Because that is the reason why you wanted this to
    go down was so you could use the drugs, isn’t that
    true?
    A.   Yes, ma’am.
    *   *   *
    Q. Okay. Now, when you obtained those drugs from
    Airman Hillhouse, you were taking a pretty big risk,
    weren’t you?
    A.   Yes, ma’am.
    Q.   Because you knew [Stachum] was a cop, right?
    A.   Yes, ma’am.
    Q. And you did it because you were going to use those
    drugs, right?
    A.   In part, yes, ma’am.
    7
    United States v. Hall, No. 01-0418/AF
    A1C Richard Gilbert, appellant’s friend and co-worker, was
    called as a defense witness.        At an evidentiary hearing conducted
    in accordance with Article 39(a), UCMJ, 10 USC § 839(a), the
    defense established that Gilbert would testify as follows:
    I heard Airman Stachum ask Airman Hall, “can you hook
    me up.” And that’s all I heard. Then Airman Hall came
    out and said, “he keeps bugging me for steroids.”
    When asked when this conversation occurred, Gilbert responded,
    “Can’t be specific, but I’d say between March and April.”
    Gilbert also testified that appellant mentioned three or four
    times that Stachum kept “bugging him for steroids.”        In response
    to a question from the military judge about the context of the
    conversation between Stachum and appellant, Gilbert testified,
    “That’s all I remember hearing, sir.”
    The military judge sustained a prosecution objection to
    Gilbert’s testimony.      He ruled that the statement about “hooking
    him up” was too remote and not trustworthy because Gilbert did
    not hear what else was said.        Regarding appellant’s complaint
    that Stachum was “bugging” him for steroids, the military judge
    ruled that it was “self-serving hearsay.”
    The Court of Criminal Appeals held that the military judge
    erred.   The court held that Gilbert’s testimony that Stachum
    asked appellant to “hook him up” was relevant to show that the
    suggestion to commit the offense originated with Stachum and to
    contradict Stachum’s testimony that he never asked appellant to
    obtain drugs for him.      The court further held that appellant’s
    complaints about Stachum “bugging” him were admissible as prior
    consistent statements under Mil.R.Evid. 801(d)(1)(B) and as
    evidence of appellant’s state of mind under Mil.R.Evid. 803(3),
    8
    United States v. Hall, No. 01-0418/AF
    Manual for Courts-Martial, United States (2000 ed.).1            The court
    held, however, that the error was harmless because “appellant’s
    own testimony established beyond a reasonable doubt not just that
    he had a predisposition to use steroids, but also that he had a
    predisposition to distribute the steroids.”            The court reasoned:
    Transferring the steroids from A1C [Hillhouse] to SrA
    Stachum was the means by which appellant would
    accomplish his goal--getting steroids for his own
    personal use. He even offered to front SrA Stachum $20
    of the purchase price to make sure SrA Stachum made the
    
    purchase.[2] 54 M.J. at 792
    .
    One judge dissented from the lower court’s holding of
    harmless error, concluding, as did the majority, that the
    excluded testimony of A1C Gilbert went to the heart of
    appellant’s entrapment defense.             The dissenting judge concluded
    that the evidence showed appellant’s predisposition to possess
    and use steroids, but did not establish his predisposition to
    distribute them.     The dissenting judge was not satisfied beyond a
    reasonable doubt that the erroneous suppression of Gilbert’s
    testimony was harmless.       
    Id. at 793.
                                     Discussion
    Before this Court, the Government has not challenged the
    correctness of the decision below regarding the admissibility of
    Gilbert’s testimony.      Thus, the sole issue before us is whether
    1
    All cited provisions from the Manual are unchanged from those in
    effect at the time of appellant’s court-martial.
    2
    The court below erroneously referred to A1C Gilbert as the
    source of the steroids instead of A1C Hillhouse.
    9
    United States v. Hall, No. 01-0418/AF
    the court below correctly determined that any error in excluding
    Gilbert’s testimony was harmless beyond a reasonable doubt.
    Appellant asserts that because this case involved a swearing
    contest between Stachum and himself, excluding evidence relating
    to Stachum’s credibility was an unconstitutional denial of the
    right to present an entrapment defense.      He argues that the
    excluded portion of Gilbert’s testimony would have corroborated
    his entrapment defense, and that there was a reasonable
    likelihood that Gilbert’s testimony would have tipped the balance
    in his favor.
    The Government argues that the exclusion of Gilbert’s
    testimony was an evidentiary error that did not prevent appellant
    from presenting his entrapment defense.      The Government further
    argues that appellant’s own testimony “provided such clear
    evidence as to his predisposition that it virtually eliminated
    any entrapment defense.”       Thus, the Government asserts that, even
    if the error was of constitutional magnitude, it was harmless
    beyond a reasonable doubt.
    We review the lower court’s harmless-error analysis de novo.
    See United States v. Grijalva, 
    55 M.J. 223
    , 228 (2001) (de novo
    review of constitutional error); United State v. Gunkle, 
    55 M.J. 26
    , 30 (2001) (de novo review of nonconstitutional error).        For
    constitutional errors, the Government must persuade us that the
    error was harmless beyond a reasonable doubt.      United States v.
    Adams, 
    44 M.J. 251
    , 252 (1996), citing Chapman v. California, 
    386 U.S. 18
    , 24 (1967).      For nonconstitutional errors, the Government
    must persuade us that the error did not have “a substantial
    10
    United States v. Hall, No. 01-0418/AF
    influence on the findings.”       
    Id., citing Kotteakos
    v. United
    States, 
    328 U.S. 750
    , 764-65 (1946).
    Entrapment is an affirmative defense.      RCM 916(g), 
    Manual, supra
    , provides: “It is a defense that the criminal design or
    suggestion to commit the offense originated in the Government and
    the accused had no predisposition to commit the offense.”       In
    United States v. Whittle, 
    34 M.J. 206
    , 208 (CMA 1992), this Court
    explained the burden of proof in entrapment cases as follows:
    The defense has the initial burden of going
    forward to show that a government agent originated the
    suggestion to commit the crime. Once the defense has
    come forward, the burden then shifts to the Government
    to prove beyond a reasonable doubt that the criminal
    design did not originate with the Government or that
    the accused had a predisposition to commit the offense,
    United States v. Vandzandt, [
    14 M.J. 332
    , 342-43 (CMA
    1982)], “prior to first being approached by Government
    agents.” Jacobson v. United States, [
    503 U.S. 540
    , 549
    (1992)].
    In United States v. Howell, 
    36 M.J. 354
    , 359-60 (CMA 1993),
    this Court, quoting United States v. Stanton, 
    973 F.2d 608
    , 610
    (8th Cir. 1992), explained that the first element of entrapment
    is an inducement by government agents to commit the crime.       This
    Court adopted the Stanton definition of an “inducement”:
    Inducement is government conduct that “creates a
    substantial risk that an undisposed person or otherwise
    law-abiding citizen would commit the offense.” . . .
    Inducement may take different forms, including
    pressure, assurances that a person is not doing
    anything wrong, “persuasion, fraudulent
    representations, threats, coercive tactics, harassment,
    promises of reward, or pleas based on need, sympathy,
    or friendship.” . . . Inducement cannot be shown if
    government agents merely provide the opportunity or
    facilities to commit the crime or use artifice and
    strategem.
    11
    United States v. Hall, No. 01-0418/AF
    (Citations and emphasis omitted.)            This Court also explained that
    a government agent’s repeated requests for drugs “do not in and
    of themselves constitute the required inducement.”           
    Id. at 360.
    In United States v. Wind, 
    28 M.J. 381
    , 382 (CMA 1989), this
    Court observed that evidence of drug possession or use to show
    predisposition to sell drugs is “questionable,” because “[m]any
    people who possess or use drugs never sell them.”           However, this
    Court has stopped short of holding that possession or use of
    drugs is never, under any circumstances, relevant to show
    predisposition to distribute drugs.
    A ruling excluding evidence is not constitutional error
    unless the evidence is “material or vital.”           United States v.
    Ndanyi, 
    45 M.J. 315
    , 321-22 (1996); United States v. Garcia, 
    44 M.J. 27
    , 31, cert. denied, 
    519 U.S. 865
    (1996).            Exclusion of evidence
    impeaching a key witness may be constitutional error if there is
    a “reasonable likelihood that the excluded evidence may have
    tipped the credibility balance in appellant’s favor.”           United
    States v. Bins, 
    43 M.J. 79
    , 87 (1995); see also United States v.
    Dorsey, 
    16 M.J. 1
    , 7 (CMA 1983) (exclusion of evidence of motive to
    lie is constitutional error).           The lower court treated the error
    in this case as constitutional error.           We need not decide whether
    the lower court correctly characterized the error, because we are
    satisfied that the error was harmless beyond a reasonable doubt.
    We evaluate prejudice from an erroneous evidentiary ruling
    under the four-pronged test set out in United States v. Weeks, 
    20 M.J. 22
    , 25 (CMA 1985).      We weigh (1) the strength of the
    Government’s case; (2) the strength of the defense case; (3) the
    12
    United States v. Hall, No. 01-0418/AF
    materiality of the evidence in question; and (4) the quality of
    the evidence in question.
    On the issue of entrapment, the Government’s evidence was
    strong.   The factual issue raised by appellant’s entrapment
    defense was whether appellant was predisposed to facilitate a
    transfer of the drugs from Hillhouse to Stachum in order to
    ensure a no-cost supply of steroids for his own use.       In this
    case, the Government was not required to show that appellant was
    generally predisposed to sell drugs, but only that he was
    predisposed to facilitate this particular transaction.
    Hillhouse’s testimony established that appellant was interested
    in obtaining steroids but had no money to buy them.       Hillhouse’s
    testimony also established that appellant offered to dispose of
    the steroids for him.      Appellant’s testimony indicated that he
    resisted whatever requests Stachum may have made for steroids,
    because he had no readily available source until Hillhouse
    approached him.     Appellant’s testimony on cross-examination
    established that appellant saw Hillhouse’s desire to dispose of
    the steroids as an opportunity to obtain a source for his own use
    without having to pay for them.
    In light of appellant’s own testimony establishing his
    predisposition to facilitate the transfer of Hillhouse’s steroids
    to Stachum, which was corroborated by Hillhouse’s testimony and
    the uncontested portions of Stachum’s testimony, we hold that any
    error in excluding portions of Gilbert’s testimony was harmless
    beyond a reasonable doubt.       Thus, we hold that the court below
    did not err.
    13
    United States v. Hall, No. 01-0418/AF
    Decision
    The decision of the United States Air Force Court of
    Criminal Appeals is affirmed.
    14
    United States v. Hall, No. 01-0418,AF
    SULLIVAN, Senior Judge (concurring in part and in the
    result):
    To the extent that the majority suggests we are precluded
    from looking at the holding of the Court of Criminal Appeals
    that error occurred, I disagree.   We granted review of the
    question of harmless error, which under our precedent allows us
    to look at the question of error   See United States v. Williams,
    
    41 M.J. 134
    , 135 n.2 (CMA 1994), citing Christianson v. Colt
    Industries Operating Corp., 
    486 U.S. 800
    , 817 (1988).   Moreover,
    we have not adopted a strict appellate waiver approach when an
    appellant fails to challenge an adverse Court of Criminal
    Appeals holding in this Court.   See generally Eugene R. Fidell,
    Guide to the Rules of Practice and Procedure for the United
    States Court of Appeals for the Armed Forces, 34-37 (9th ed.
    2000)(recognizing this Court’s practice of specifying issues not
    assigned by appellate defense counsel);   see also United States
    v. Johnson, 
    42 M.J. 443
    , 446 (1995).   Finally, I am not convinced
    that the law of the case, rather than appellate forfeiture with
    a plain error exception, is the proper approach to these
    questions.   See generally United States v. Castillo, 179 F.3rd
    321, 326-27 (5th Cir. 1999); Crocker v. Piedmont Aviation, Inc.,
    49 F.3rd 735, 739-40 (D.C. Cir. 1995).
    In my view, error occurred in this case for the reasons
    posited by the Court of Criminal Appeals.   Nevertheless, I agree
    United States v. Hall, No. 01-0418/AF
    with the majority that such error was harmless beyond a
    reasonable doubt.
    Whether Airman Stachum induced appellant to commit the
    charged offense, and Stachum’s credibility in this regard, were
    not outcome determinative issues in this case.   As pointed out
    by the majority, an additional requirement for a successful
    entrapment defense was a showing of an absence of a
    predisposition on appellant’s part to commit the charged
    offense.   See RCM 916(g), Manual for Courts-Martial, United
    States (1998 ed.).
    I agree with the majority opinion that there was
    overwhelming evidence of appellant’s predisposition to acquire
    drugs from A1C Hillhouse in this case.   In these circumstances,
    there was no reasonable possibility that the members would find
    the second prerequisite of this defense existed in appellant’s
    case.   Accordingly, I conclude that error in excluding defense
    evidence on Stachum’s purported inducement of appellant and
    Stachum’s credibility was harmless beyond a reasonable doubt.
    See United States v. Monroe, 
    42 M.J. 398
    , 402-03 (1995).
    2
    United States v. Hall, No. 01-0418/AF
    EFFRON, Judge (dissenting):
    As the Court of Criminal Appeals noted, the military judge
    erroneously excluded testimony that went “directly to the heart
    of the appellant’s entrapment defense.”    
    54 M.J. 788
    , 792 (2001).
    The court concluded that the error was not prejudicial under
    Article 59(a), UCMJ, 10 USC § 859(a).    
    Id. The sole
    issue
    before us in the present appeal is the question of prejudice.
    The majority opinion concludes that any error was harmless
    beyond a reasonable doubt.   __ MJ at (12).    I respectfully
    dissent.
    As our Court has emphasized, “an accused has a tough row to
    hoe to secure acquittal by virtue of entrapment because ‘[a]
    law-abiding person is one who resists the temptations, which
    abound in our society today, to commit crimes.’”     United States
    v. LeMaster, 
    40 M.J. 178
    , 180 (CMA 1994) (quoting United States v.
    Whittle, 
    34 M.J. 206
    , 208 (CMA 1992)).    That task becomes
    particularly daunting if the military judge denies the accused
    the opportunity to present evidence that goes “to the heart” of
    his or her entrapment defense.
    In an entrapment case, the determination as to whether an
    accused was entrapped is a subjective inquiry that “must be
    resolved by the fact finder.”    United States v. Vanzandt, 14 MJ
    United States v. Hall, No. 01-0418/AF
    332, 343 (CMA 1982).   The issue of entrapment “involves
    balancing the accused’s resistance to temptation against the
    amount of government inducement.”    
    Id. at 344.
      Because this is
    a factual issue, our resolution of the present appeal does not
    turn on whether we would believe appellant’s version of the
    events, see United States v. Wells, 
    52 M.J. 126
    , 131 (1999), or
    whether the evidence was sufficient as a matter of law.     Compare
    Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979).     The issue we
    must resolve is “whether the error had a substantial influence
    on the findings.”   United States v. Adams, 
    44 M.J. 251
    , 252 (1996)
    (articulating standard for nonconstitutional errors) (citations
    omitted); see also United States v. Jefferson, 
    13 M.J. 1
    , 4 (CMA
    1982) (test for harmless error under constitutional standard is
    “whether ‘evidence in the record of trial demonstrates beyond a
    reasonable doubt that the unadmitted testimony would not have
    tipped the balance in favor of the accused and the evidence of
    guilt is so strong as to show no reasonable possibility of
    prejudice.’”) (citation omitted).
    The majority opinion contends that the Government’s
    evidence was “strong” on the question of entrapment, relying
    principally on the claim that “Hillhouses’s testimony
    established that appellant was interested in obtaining steroids
    but had no money to buy them,” to show predisposition.     __ MJ at
    2
    United States v. Hall, No. 01-0418/AF
    (13).   The majority opinion also relies on the contention that
    appellant’s testimony demonstrates that he resisted Stachum’s
    repeated requests for steroids only because he did not have a
    source to supply Stachum until Hillhouse approached him.   
    Id. The evidence,
    however, raises more than a reasonable doubt on a
    number of key points.
    First, with respect to Hillhouse, who testified under a
    grant of immunity, his testimony is quite ambiguous on the issue
    of whether -- at the time of the controlled buy or any other
    time -- appellant was interested in buying steroids but had no
    money to do so.   On direct examination, Hillhouse testified as
    follows:
    Q: Before you left for Washington, did you
    ever have a conversation with the accused
    about steroids?
    A: Quite frequently.
    Q: What were these conversations about?
    A: They were just basic questions and basic
    conversations to the effect that do you know
    the pros and cons--pretty much what they
    [steroids] can do for you.
    *    *   *
    Q: Did you ever have a conversation with him
    about what you were going to do when you go
    to Washington?
    A: The only thing I would be able to recall
    is I would attempt to purchase them
    3
    United States v. Hall, No. 01-0418/AF
    [steroids]. I by no means knew for sure if
    I was going to.
    Q: So, you told the accused that you were
    going to try to buy some steroids?
    A: Yes.
    Q: And what did he say in response to that?
    A: Really not too much. And if he had
    money, he would probably want me to buy
    some. I don’t have the 100% prove [sic] on
    that though.
    (Emphasis added.)     This testimony does not establish beyond a
    reasonable doubt that appellant lacked sufficient funds to
    purchase steroids.      At most, it indicates that appellant may not
    have had the necessary funds prior to the time Hillhouse
    purchased the steroids on June 16 while in Washington state.
    The testimony does not directly address appellant’s ability to
    purchase the steroids on July 9, the date of the controlled buy.∗
    Second, appellant’s testimony does not establish beyond a
    reasonable doubt that his resistance to Stachum’s inducement was
    based solely on the fact that he did not have a source to
    ∗
    It is noteworthy as well that appellant did not testify as to his ability
    (or inability) to pay the $120 to purchase Hillhouse’s leftover steroids, nor
    did trial counsel inquire about this matter on cross examination. Moreover,
    trial counsel did not proffer any other evidence on this point. Equally
    telling is the fact the Government’s brief does not rely on appellant’s
    purported inability to pay to show predisposition. See Government Brief at
    15 (arguing only that appellant was motivated by a desire “to obtain
    [steroids] for his own use”). As defense counsel noted in his closing
    argument at trial, “There’s no evidence that Airman Hall couldn’t have gone
    out and bought those steroids just for himself.”
    4
    United States v. Hall, No. 01-0418/AF
    fulfill Stachum’s request.   Although such a conclusion is one
    possible inference that could be drawn from the evidence,
    appellant’s testimony does not establish this fact beyond a
    reasonable doubt.   The Government did not prove that, absent
    Stachum’s three-month campaign of inducement, or prior thereto,
    appellant nonetheless would have engaged in the criminal conduct
    for which he was convicted, illegal distribution of steroids, in
    order to obtain steroids for his own personal use.   See Jacobson
    v. United States, 
    503 U.S. 540
    , 549 n.2 (1992).
    Appellant’s admission that he sold the steroids in part so
    that he could use them is not dispositive.   See United States v.
    Eckhoff, 
    27 M.J. 142
    , 144 (CMA 1988) (holding “that a profit
    motive does not automatically negate an entrapment defense”).
    Accordingly, a drug user who is motivated in part by a desire to
    use drugs, or who otherwise benefits from a transaction, does
    not forfeit the entrapment defense.   The prosecution must still
    demonstrate that such a person would have acted in the absence
    of the Government’s inducement or conceived the idea “prior to
    first being approached by Government agents.”   United States v.
    Howell, 
    36 M.J. 354
    , 358 (CMA 1993) (quoting Jacobson, supra at
    549) (emphasis added).
    Consistent with this requirement, we have acknowledged that
    profit motive may be considered as one factor in determining
    5
    United States v. Hall, No. 01-0418/AF
    whether an accused was predisposed to commit the charged crime,
    but we have not held that the presence of such motive precludes
    the defense.   See, e.g., United States v. Cooper, 
    35 M.J. 417
    , 425
    (CMA 1992) (profit motive identified as one of five factors to
    show predisposition); United States v. Bell, 
    38 M.J. 358
    , 360 (CMA
    1993) (“unquestionably, the entrapment defense was raised by
    appellant’s own testimony,” though appellant profited from
    transaction); United States v. Bailey, 
    21 M.J. 244
    , 245 (CMA 1986)
    (guilty plea improvident and entrapment defense raised where
    appellant gained profit from illegal distribution).   In 
    Howell, supra
    , we relied upon federal civilian opinions that have
    similarly identified profit motive as one among several factors
    that may be considered when assessing predisposition.   See
    United States v. Kaminski, 
    703 F.2d 1004
    , 1008 (7th Cir. 1983)
    (identifying five “factors relevant in determining
    predisposition,” including character, whether the Government
    first suggested the illegal conduct, and profit motive); United
    States v. Skarie, 
    971 F.2d 317
    , 320 (9th Cir. 1992) (same); see
    also United States v. Martinez, 
    122 F.3d 1161
    , 1163 (9th Cir.
    1997) (holding “none of [five] factors is controlling” as to
    predisposition, including profit motive); United States v.
    Miller, 
    71 F.3d 813
    , 816 (11th Cir. 1996) (noting prior decisions
    have “refused to enumerate a list of factors to address when a
    6
    United States v. Hall, No. 01-0418/AF
    defendant’s predisposition is at issue because the inquiry ...
    is necessarily ... fact-intensive”).
    The predicate factual issue in this case is whether the
    Government’s inducement set off the chain of events which led to
    appellant’s participation in the sale of steroids on July 9, the
    resolution of which includes assessing whether appellant
    sufficiently “resist[ed] ... temptation against the amount of
    government inducement” to warrant acquittal.    
    Vanzandt, 14 M.J. at 344
    .    The Court of Criminal Appeals held that Gilbert’s
    testimony was admissible as a prior consistent statement to
    rebut the Government’s attack on appellant’s truthfulness on
    cross-examination, as evidence of appellant’s state of mind, and
    to impeach Stachum, who claimed never to have asked appellant
    for steroids.    All of these reasons constitute factors that bear
    directly upon the issue of appellant’s predisposition.      As the
    members were presented only with the testimony of appellant and
    Stachum on the entrapment question, resolution of this question
    turned entirely on credibility.    Under these circumstances, the
    exclusion of Airman Gilbert’s testimony was prejudicial because
    it deprived the defense of the opportunity to have the
    credibility question resolved by the members.
    7