(concurring in the result):
I would hold that a “major change” occurred in this case within the meaning of RCM 603, Manual for Courts-Martial, United States, 1984. The original specification alleged a single overt act occurring before the conspiracy between appellant and Mr. Perez was formed. See United States v. Easom, 569 F.2d 457, 459 (8th Cir.1978); Harms v. United States, 272 F.2d 478, 482 (4th Cir.1959); Dahly v. United States, 50 F.2d 37, 42 (8th Cir.1931)(“it must be established that the conspiracy ... was existing at the time of the commission of the overt act or acts”); see also United States v. Johnson, 25 MJ 878, 883-84 (NMCMR 1988). It was later amended to delete that overt act and add another act which occurred after the conspiracy between appellant and Mr. Perez was formed. In terms of the legal sufficiency of the prosecution’s case as alleged, this was a major change. See United States v. Smythe, 37 MJ 804, 807 (CGCMR 1993); United States v. Garrett, 17 MJ 907, 909 (AFCMR 1984); United States v. Louder, 7 MJ 548, 551 (AFCMR 1979). Nevertheless, I see no prejudice in this case and would affirm. United States v. Sullivan, 42 MJ 360, 365 (1995).
Fed.R.Crim.P. 7(e) simply states:
(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
RCM 603 is different in the language it uses to address the problem of amending military specifications. It states:
Rule 603. Changes to charges and specifications
(a) Minor changes defined. Minor changes in charges and specifications are any except those which add a party, offenses, or substantial matter not fairly included in those previously preferred, or *220which are likely to mislead the accused as to the offenses charged.
(b) Minor changes before arraignment. Any person forwarding, acting upon, or prosecuting charges on behalf of the United States except an investigating officer appointed under RCM 405 may make minor changes to charges or specifications before arraignment.
(c) Minor changes after arraignment. After arraignment the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced.
(d) Major changes. Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.
(Emphasis added; Discussion omitted.)
Fed.R.Crim.P. 7(e) does not have the same language. Thus, the mere fact that the same offense, conspiracy to sell stolen goods, was alleged in the original and the amended specification is not dispositive of the RCM 603 question. In my view, the replacement of a legally insufficient overt act adds to the specification “substantial matter not fairly included” in the previously preferred charge. See RCM 603(a). However, even if the change made in this case was major and it was error to do so over defense objection, this error must be tested for prejudice under Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
Appellant was not prejudiced by this amendment to the originally charged specification. Art. 59(a). In Sullivan, 42 MJ at 365, this Court defined prejudice in this context as causing “unfair surprise” or absence of notice which hinders preparation of the defense. It was, however, well-established at the time of appellant’s court-martial that he must be prepared to defend against overt acts other than those alleged in the specification. See United States v. Collier, 14 MJ 377 (CMA 1983). Moreover, the prosecution’s proof of the amended overt act was drawn from the same witness testifying about the same telephone conversation concerning the same illegal plan to sell the stolen drugs. See United States v. Adamo, 534 F.2d 31, 39 (3d Cir.1976)(difference in facts slight). Finally, although appellant objected to the amendment of the specification, he did not request a continuance to further prepare his defense and his cross-examination of the Government’s central witness was not precluded or rendered ineffective by this change. Id. In these circumstances, I find no unfair surprise.