(concurring in the result):
When Private Larkins awoke one morning at about 5:30 a. m., he discovered his Hitachi Cassette Radio/Television was missing from his cubicle. He reported his loss to the appellant, the charge of quarters for the barracks, who joined him in an unsuccessful search of the barracks area. Thereafter, Morris was seen carrying a laundry bag which contained a rectangular object described as being about the same size as the cassette. He took this bag off-post with him to a nearby village, and when he returned a short time later the bag no longer contained the object. No one saw what was in the bag and the cassette was never found.
As part of its case the Government offered testimony of a Korean security guard that he had stopped appellant when he was leaving the camp and had asked what was in the bag. When he added that Morris had replied that the bag contained a cassette, the defense counsel promptly objected on the ground no warning was given before the statement and an Article 39(a)1 session was held. There, trial counsel informed the judge that she had instructed the witness not to relate any statements by the accused. Defense counsel then advised the judge that in his view a cautionary instruction would be inadequate, so he moved for a mistrial. After a colloquy between counsel and the judge about whether the security guard was subject to Article 312 as an agent of the Government, trial counsel stated that since she had not been sure whether Article 31 warnings were required, she had tried to avoid the issue by not offering the statement. However, if a mistrial was contemplated, she requested time to check case law as to the necessity for such action. Defense counsel remarked that he and trial counsel “more or less agreed ... that these responses were improper.” The judge then disposed of the matter by declining to rule specifically whether there was a duty to warn, but instead by ruling “based on the assumption that it’s improper.” He denied the motion for mistrial, and instead he opted for a cautionary instruction to the members that, since the “statement ... is inadmissible,” they “must totally disregard” it and “not consider it in anyway in your deliberations.”
By concluding that Article 31 warnings were unnecessary because appellant was not a suspect at the time the statement was made, the lead opinion avoids ruling on the denial of the motion for a mistrial. However, I must face that issue, for in my view the instruction by the military judge that the statement was not to be considered by the members constitutes the law of the case3 and this Court is bound thereby. This view is supported by United States v. Jiminez-Lopez, 437 F.2d 791 (9th Cir. 1971), cert. denied, 402 U.S. 1010, 91 S.Ct. 2195, 29 L.Ed.2d 432 (1971). There, a federal judge held in a suppression hearing that answers to questions by customs officers must be suppressed because adequate warnings had *300not been given. At trial, defense counsel asked a government witness on cross-examination if he had sent a package containing marihuana to fingerprint experts for examination. The witness answered in the negative this question, which went to appellant’s knowledge of the presence of marihuana. On redirect, the Government over objection was allowed by a federal judge other than the one who sat at the suppression hearing to ask the witness the reason for his answer and to have the jury consider his response that his reason was “[bjecause of a statement made by” defendant. All parties to the trial including the judge, considered that the response referred to the statement which was subject to the prior suppression order. The government’s argument “that the pretrial order of suppression had been erroneously made” was treated by the Court as follows:
The statement of the trial judge who was sitting at the suppression hearing, does indicate that he took a rather expansive view of the Miranda rights, as applied to the circumstances of these appellants. We think that that view was within the permissible judicial discretion of the judge who expressed it. But his suppression ruling was the law of the case, since it was not modified by the trial judge who sat at the trial, and we think it was error for the latter judge to permit the question and the answer given on re-direct examination which disclosed that there had been extrajudicial questioning and that some sort of an answer had been given.
Id. at 794. The Court, however, held “the error ... was harmless, beyond any reasonable doubt” because there was “overwhelming evidence of his guilt.” Id. at 794-95.
The doctrine of the law of the case is that “once an issue is decided, it will not be relitigated in the same case, except in unusual circumstances.” This serves to promote finality and efficient judicial administration. The trial judge who made the ruling may “reexamine and, if necessary, .. . alter a previous ruling in order to avoid the perpetuation of an error.” The prior decision may also be reconsidered (1) by “a successor judge” if the original judge is “unavailable” in the same case; (2) if there is “new evidence”; (3) if “a supervening rule of law” is issued before the decision becomes final; or (4) if “the decision was clearly erroneous and would work a manifest injustice.” 4
Of these exceptions to the law-of-the-case doctrine, only the fourth seems pertinent. However, as in Jiminez-Lopez, the ruling “was within the permissible judicial discretion of the judge” (437 F.2d at 794), in view of counsel’s statements to the judge strongly suggesting mutual agreement that the statement had been improperly obtained, and thus the ruling was not clearly erroneous.5
Even if the ruling had been clearly erroneous, there is “manifest injustice” to appellant in holding — long after the trial is over — that, contrary to the law of the case, his statement to the guard was admissible. Defense counsel never had the opportunity to cross-examine the witness about the alleged statement or the circumstances under which it was made.6 His tactical decisions *301at trial were made in reliance on that ruling. He never had the opportunity to argue about the weight to be given to the statement. Since at trial the Government did not actively contest the defense position that the statement was inadmissible, and at no time requested the judge to reconsider his ruling, there is no “manifest injustice” to the Government in applying the law of the case.
Since I am bound by the trial judge’s ruling that the statement was inadmissible, I now must inquire whether, without that evidence, the Government’s case was legally sufficient and even if so, whether appellant was prejudiced by denial of a mistrial. Without reciting the evidence in detail, I am convinced that it was legally sufficient. As to prejudice from denial of the defense motion for mistrial, the test is whether the curative instruction from the judge was sufficient to purge any prejudice. Cf. United States v. Williams, 523 F.2d 1203, 1210 (5th Cir. 1975). Relying both on the sound discretion of the trial judge who heard the inadmissible statement and on my own independent review of the record, I am convinced that any prejudice was purged. Therefore, I join in affirming the decision of the Court of Military Review.
. Uniform Code of Military Justice, 10 U.S.C. § 839(a).
. UCMJ, 10 U.S.C. § 831.
. Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165, 169, 170 (3d Cir. 1982); United States v. Horton, 622 F.2d 144, 149 (5th Cir. 1980); see Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); United States v. McClain, 593 F.2d 658, 664 (5th Cir. 1979), cert. denied, 444 U.S. 918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979).
. See United States v. Wellins, 654 F.2d 550, 552 n.1 (9th Cir. 1981): Where “the Government admitted, for purposes of ... appeal, ... that the evidence ... was properly suppressed,” it would not be permitted to change that position later in the proceedings. See also United States v. McDowell Contractors, Inc., 668 F.2d 256 (6th Cir. 1982); United States v. Parrilla Bonilla, 648 F.2d 1373, 1385-86 (1st Cir. 1981); United States v. Hannah, 584 F.2d 27, 30 (3d Cir. 1978); United States v. Fuentes, 563 F.2d 527, 531 (2d Cir. 1977). The situation would be entirely different if the evidence had been admitted, for it is settled that denial of a motion to suppress may be sustained on any theory whether considered by the district court or not. United States v. Allen, 629 F.2d 51, 57 (D.C.Cir.1980).
. See United States v. Kaiser, 660 F.2d 724, 731 (9th Cir. 1981): Even though the testimony of a government witness was erroneously stricken *301by the judge, the court rejected the Government’s contention that the testimony could provide the necessary foundation for admission of certain exhibits. “The cross-examination of ... [the witness], terminated when his testimony was stricken. To now permit his testimony to provide a foundation for exhibits would effectively deny the defendants their opportunity to cross-examine ... [the witness], and that we cannot do.” See also United States v. Patrin, 575 F.2d 708 (9th Cir. 1978). At trial “the government ... disavowed any intent to rely upon the game protection category,” but on appeal counsel sought to rely on that theory rather than the one presented at trial. Id. at 711. In rejecting the alternative theory, the Court of Appeals recognized that a change of theory could be permitted where “the party against whom the issue is raised ... [was] not ... prejudiced by it. Thus, if he might have tried his case differently either by developing new facts in response to or advancing distinct legal arguments against the issue, it should not be permitted to be raised for the first time on appeal.” Id. at 712. Concluding that prejudice was possible from a change of theory, the Court held “that the government’s case, in light of its concession during the trial, must stand or fall on” the theory used at trial. Id. at 713.