(dissenting):
I agree with the majority’s conclusion that Taylor’s statements that others, including the accused, would participate in the offense were merely preliminary to the actual conspiracy. The evidence clearly indicates Taylor merely assumed the others would participate; and the assumption was based on the bare fact they agreed to attend the meeting he proposed. At that point in the proceedings, if there was any agreement between Taylor and the others, it was an agreement merely to discuss Taylor’s proposal, not an agreement to engage in it.
Although the evidence was improperly admitted, it did not, in my opinion, prejudice the accused. The law officer specifically instructed the court-martial that it must find the accused to be a member of the conspiracy “without regard to and independently of the statements” of his participation by anyone else; only after it reached this finding could it consider declarations by others which were made in furtherance of the conspiracy. Undisputed evidence shows the accused was present at the time and *341place of the scheduled meeting; he heard the arrangements for the offense, including the role he was to play-in it; and he expressed affirmative agreement with those arrangements. With these direct, unequivocal acts and statements by the accused before it, it is unlikely, in my opinion, that the court-martial was influenced by Taylor’s statements. Since there is no fair risk that the inadmissible evidence prejudiced the accused, I would affirm the decision of the board of review.