(dissenting):
I dissent because the majority overlooks the common-law theory of contradiction and misreads the Supreme Court cases concerning impeachment by extrinsic evidence.
FACTS
Appellant, an Office of Special Investigations agent, when notified on Wednesday, April 24, 1996, that she had been randomly selected for urinalysis testing, became pale and ill and went home early. She called in sick on Thursday and did not provide the urine sample until the following Monday morning. That sample tested positive for marijuana. Appellant was then ordered to provide a command-directed urine sample on May 21, 1996. That sample also tested positive for marijuana.
At trial, the defense began its case-in-chief by introducing seven affidavits as to the good character of appellant. The first live defense witness was another agent who indicated he had attended the same luncheon as appellant and also became sick. Appellant was the next defense witness and testified that she had no idea as to why she tested positive and that she was mad that the test identified her *473as using marijuana. At the conclusion of the direct examination, the prosecutor asked for an Article 39(a) session at which he argued that appellant’s testimony opened the door to admission of the command-directed urinalysis under Mil.R.Evid. 404(b) as rebuttal to show appellant had knowledge of and opportunity to use marijuana.
To determine logical relevance, a government expert, Dr. Papa, was recalled. He testified that because of the length of time between the first and second sample, the second sample could not be attributed to the first ingestion. Based on the prosecution, proffer, the judge then allowed the prosecution to question appellant about the second urinalysis.
DISCUSSION
This case involves use of a subsequent act to contradict appellant’s trial assertion that she had no idea why she tested positive and that she was mad that the test identified her as using marijuana. The prevailing “view is that subsequent acts are admissible,” if “logically relevant.” See 1 E. Imwinkelried, Uncharged Misconduct Evidence § 2:12 at 72 (1999).
That same treatise recognizes, however, that “subsequent acts are often (but not invariably) irrelevant to prove the defendant’s prior knowledge.” Id. at 73-74. Furthermore, “depending on the theory, the prosecutor may be restricted to prior uncharged misconduct or similar acts or may be required to prove more than one uncharged act.” § 5:24 at 66 (footnote omitted).
The treatise then discusses four categories of cases in which prosecutors are frequently allowed to introduce uncharged misconduct to prove the defendant’s guilty knowledge. §§ 5:25 - 5:28. The fourth category is styled Uncharged Acts Which Tend To Prove Guilty Knowledge by Virtue of Doctrine of Chances. § 5:28 at 78. According to this doctrine, “it is unlikely that the defendant would be repeatedly innocently involved in the similar suspicious situations.” Id. In this category, it does not matter “[wjhether the incident occurs before or after the uncharged incident, [because] under the doctrine of chances the uncharged incident is relevant to lower the probability of innocent state of mind.” Id. at 79.
The treatise notes that “courts are split over the question whether the proponent may invoke the doctrine of chances if the proponent has evidence of only one similar act.” § 5:07 at 22. However, “[u]nder Federal Rule of Evidence 401, even a single similar instance of conduct can be material to increase the likelihood of mens rea.” Id. (footnote omitted). For example:
If the judge believes that it is implausible that a person could perform a physical act or series of acts more than once without forming a certain mens rea, a single uncharged act is relevant under the doctrine of chances to show intent. Relying on his or her common sense and life experience, the judge may conclude that innocent involvement in this type of incident is a “once in a lifetime” experience.
Id. at 23.
Appellant’s claim of lack of knowledge as to why her April 29th urinalysis results tested positive for marijuana is precisely such a “ ‘once in a lifetime’ experience.” It is implausible that she could be tested again the following month, on May 21, and once again have her urinalysis results test positive for marijuana and have an innocent state of mind. The act at issue is similar in all respects: the same drug found in the urine of a person and closely related in time.1 Moreover, marijuana use is a complex act requiring several premeditated steps. Therefore, appellant’s subsequent positive urinalysis test is admissible under the theory of logical relevance.
The majority asserts that the evidence is insufficiently similar to the charged act. I disagree. The cases cited by the majority are entirely dissimilar. For example, in United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir.1995), the court found particularly troubling “the four-year period between *474[the accused’s] prior conviction and the facts leading to the present charges.” The court nonetheless found “that the district court did not abuse its discretion in finding that Aguilar-Araneeta’s prior conviction was specially relevant to the issue of knowledge.” The court also found that the evidence should have been excluded under “Rule 403 balancing” (id. at 800) due to “the remoteness in time of her prior conviction” and the danger of unfair prejudice. “Aguilar-Aranceta spoke little or no English”; the postal “window clerk was aware that Aguilar-Aranceta would be arrested if she took the packages” containing cocaine and the clerk “might have been especially zealous in encouraging her to take the packages.” Id. at 801.
In United States v. Gordon, 987 F.2d 902 (2d Cir.1993), the court concluded that defendant “Gordon’s possession 16 months earlier of a modest amount of crack and a triple-beam scale had so little value to prove his knowledge that Ghullkie, whom he had met only recently, was importing a large quantity of cocaine and marijuana that it was inadmissible.” Id. at 909.
In United States v. Mayans, the defendant was charged with conspiracy to distribute and possession with intent to distribute cocaine, and possession of cocaine. “[F]ive cocaine buyers and the sellers’ ‘mule,’ Andres Ortiz, were all arrested in the act of consummating a drug deal; three others ... were arrested at or in the course of leaving an apartment ... which Ortiz had visited just before the deal.” Appellant “Pablo Mayans was arrested as he drove up and down the street in front of’ the apartment, which was owned by his family. “The government ... introduced evidence ... of prior drug deals between Mayans and three of the buyers” to show knowledge and intent. “The trial court ... was satisfied with information of the crudest sort — the mere fact that appellant had allegedly made prior drug deals with the co-defendants.” 17 F.3d 1174, 1177, 1182-83 (9th Cir.1994). The Court of Appeals found that this evidence may not have “put him on notice of the facts about which he disclaimed knowledge in this case.” Id. at 1183.
The Court of Appeals in Mayans cited a case with facts similar to this one concerning proof of “a logical connection between the knowledge gained as a result of the commission of the prior act and the knowledge at issue in the charged act.” Id. at 1181-82. In United States v. Sinn, 622 F.2d 415 (9th Cir.1980), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980), the accused “was apprehended at the Los Angeles airport following a flight from Ecuador and was found carrying a camera case” concealing cocaine. As noted by the Sinn court, which included then-Judge Kennedy, “It was shown over objection that about five years previously appellant had been in possession of cocaine during an illegal buy-and-sell transaction.” The court held: “Where, as here, the sole question is one of intent, we think it within the discretion of the trial court to decide that a previous dealing is relevant on the issue of the knowledge of the participant in a second event, particularly where, as here, there was substantial evidence from which knowledge might be inferred apart from the prior act.... Here, in both the prior and the subsequent offenses, the identical drug was involved and was found on the person of the appellant.” 622 F.2d at 416.
The majority opinion in the present appeal denounces the “paper case” of the laboratory results as insufficient to show the circumstances surrounding either the first or second alleged ingestion. None of the cases cited in the majority opinion require a more detailed factual predicate for admission of prior or subsequent acts. All that needs to be demonstrated is logical relevance: i.e., the identical drug was found in the urine of the person on separate occasions, and in this case, only one month apart. It doesn’t matter whether appellant smoked a joint on one occasion and a bong the next; either way, the evidence shows that she knew why her urine tested positive for marijuana.
The Supreme Court in Harris v. New York, 401 U.S. 222, 224-25, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), relying on Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), approved use of illegally seized evidence to impeach the accused’s testimony. But Walder involved impeachment on a col*475lateral point. The Walder Court said the defendant “must be free to deny” elements in the case without opening himself or herself to impeachment by illegally seized evidence. Harris implicitly rejected that limitation and thus rejected the requirement for a sweeping denial before illegally seized evidence may be admitted.
The Supreme Court in United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), noted specifically the Court of Appeals’ holding below “that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination.” Id. at 623, 100 S.Ct. 1912. The holding was based on a very narrow reading of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). 446 U.S. at 623-25, 100 S.Ct. 1912.
Agnello was charged with conspiracy to sell a package of cocaine. He testified on direct examination that he had possessed the packages but did not know what was in them. On cross-examination he denied ever having seen the narcotics that were in the can of cocaine that was suppressed. The Supreme Court held that the suppressed evidence could not be used to impeach Agnello since on direct examination he did not testify concerning the can of cocaine. 269 U.S. at 35, 46 S.Ct. 4.
The Supreme Court in Havens noted that Agnello and the other cases were erroneously read to mean that illegally seized evidence could be used to impeach a statement brought out by defendant on direct, but not brought out “for the first time on cross-examination.” The Court recognized that in Walder, Harris, and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), impeachment with illegally obtained evidence was permitted because of what the defendant said on direct examination. But “[tjhese cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence.” The Supreme Court noted that the Court of Appeals “also relied on the statement in Agnello ... that Agnello had done nothing ‘to justify cross-examination in respect of the evidence claimed to have been obtained by the search.’ The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence.” 446 U.S. at 625,100 S.Ct. 1912.
Justice Brennan joined by Justices Marshall, Stewart, and Stevens, dissented. Justice Brennan complained that the majority had passed control of the impeachment “exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning.” 446 U.S. at 631, 100 S.Ct. 1912. He complained the majority set up a “pitiful scarecrow” which it proceeded to demolished. He noted that both Agnello and Walder stand for the proposition “that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence.” Id. at 630, 100 S.Ct. 1912. He also noted that “cross-examination about Agnello’s previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting was cocaine.” Id. at 630-31, 100 S.Ct. 1912. In fact, the Brennan dissent noted that in Walder the “decision specifically stated that a defendant ‘must be free to deny all the elements of the case against him without thereby giving leave to the Government” to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case-in-chief.’ ” Id. at 631, 100 S.Ct. 1912, citing 347 U.S. at 65, 74 S.Ct. 354. While truth-seeking is important, the dissenter thought that the Supreme Court should not aid police officers in violating the law. 446 U.S. at 633, 100 S.Ct. 1912.
Rather than analyzing truth-finding as a trial objective, the majority of this Court takes the view of the dissenters in Havens. Fortunately, that is not the law. Unfortunately, the majority seems to think it is. For this reason, I dissent.
. The treatise notes: "So long as the time lapse is short and there is no evidence of an intervening change in circumstances, there certainly is logical relevance.” § 2:12 at 73.