Opinion
CRAWFORD, Judge:
This case is before us to reconsider our opinion in United States v. Cooper, 33 MJ [418]*418356 (CMA 1991). This Court granted reconsideration to determine whether the known targeting of an individual in a drug rehabilitation program requires dismissal of the charges and whether appellant was entrapped within the meaning of Jacobson v. United States, — U.S.-, 112 S.Ct. 1535, 118 L.Ed.2d 147 (1992).
We hold that the known targeting of an individual in a drug rehabilitation program does not require dismissal of the charges and that appellant was not entrapped within the meaning of Jacobson.
I
Appellant voluntarily entered a drug treatment center operated by the Navy in Miramar, California, on September 6, 1988, for 6 weeks of intensive in-house drug rehabilitation and treatment. Upon completion of the 6-week program, he continued receiving treatment on an out-patient basis at Port Myer, Virginia. This out-patient treatment lasted for 6 more months and involved attending daily counseling sessions and nightly meetings of Narcotics Anonymous.
In the fall of 1988, agents of the Army Criminal Investigation Command (CID) suspected that there was a drug ring operating within its headquarters. At about that same time, Mr. Rodney Powell, who had been arrested by military authorities for allegedly stealing and pawning his girlfriend’s television set to obtain cash to buy cocaine, approached the CID to offer his cooperation in the drug-ring investigation. Powell wanted to reenlist in the Army and sought to exchange his cooperation with the CID drug suppression team for CID support for his reenlistment. Thus, the proverbial marriage of convenience was consummated.
Powell gave the CID the names of five or six individuals whom he claimed had sold drugs within the CID headquarters facility. Appellant was one of these individuals. As part of his cooperation, Powell agreed to attempt to purchase drugs from these individuals in a CID sting operation. On November 30, 1988, Powell made a drug buy from one of the named individuals and on December 1 made a second drug buy from another.
On December 2, Powell made a telephone call to appellant from the CID drug suppression team office. Present in the office was Powell’s CID handler, a 21-year-old specialist who had completed basic training in July 1987 and had worked on the drug suppression team since August 1988. Powell testified that he called appellant and asked if he could get some drugs. Appellant responded that he was “not using” drugs and was not “doing anything else.” However, Powell testified that he called again.1 The exact number of calls is disputed. Powell told appellant, “I had this white boy that had some money and wanted to sell some, and I didn’t know where to get any from, and did he know?” Whereupon appellant agreed to help Powell.
Powell and appellant scheduled a rendezvous at 2:25 p.m. on December 2 at the 7-Eleven store on Columbia Pike in Falls Church, Virginia, near the building where appellant worked. Appellant met Powell and the CID handler at the appointed time and place. They proceeded together in the CID agent’s car to an apartment in a multiple dwelling unit in Washington, D.C. During the ride to the dwelling, appellant admitted to selling drugs while stationed in Panama and explained to the CID handler how to turn powder into crack cocaine. The handler testified that it was during this car ride that he also learned for the first time that appellant was in a drug rehabilitation program. Powell testified that appellant “had been in rehabilitation treatment in California.” The handler also testified that he was not familiar with Army Regulation (AR) 600-85 or 195-15.
Upon arriving at an apartment in Washington, D.C., Powell and the handler went with appellant to the dwelling where appellant had a conversation with some individu[419]*419als in the apartment. Following that conversation, he took Powell and the handler to another apartment. There he was told by an unknown individual that there were no drugs there at that time but that there would be some there in a short period of time. Appellant, as well as Powell and the handler decided to take a break and went across the street to a Safeway store for a pack of cigarettes. After a short time, appellant returned to the second apartment and obtained cocaine while Powell and the handler waited in the car. When he returned to the car, appellant indicated that he had a “good deal” and would do it again if they needed more. Additionally, he suggested some locations for selling drugs.
On December 5, Powell telephoned appellant again and asked if appellant would make another drug purchase. Appellant replied in the affirmative, and they agreed to meet at the same 7-Eleven store. Upon meeting there, appellant suggested that, rather than taking the handler’s car, they take his car as he could drive and get them there quicker. On the way to the crack house appellant indicated that he could make a third buy for the handler but this would have to be done before Wednesday as his wife was arriving on that day. When they reached the same location where the first purchase was made, two black males across the street from the apartment building approached appellant. Appellant appeared to recognize them because he waved at them. They turned out to be appellant’s suppliers. Although appellant expressed some concern that the two men might be armed with automatic weapons under their trenchcoats, he showed no hesitancy in getting out of the car and talking to them. He then returned to the car, took $500 from the handler, and accompanied the two men into the apartment house. After about 10 minutes, appellant returned with drugs. Once again he indicated that it was a good deal and this time asked that he be compensated for his services.
II
As indicated by Judge Cox in his original opinion herein, this case “is a sad commentary on the lure and addictive nature of cocaine.” 33 MJ at 357 n.3. We also agree with the views expressed by Senior Judge Everett in Cooper as follows:
In the view of many, illegal drugs is the single most serious law-enforcement problem facing governments at all levels today. Drug abuse is a killer: It kills bodies; it kills spirit; it kills imagination; it kills love. It is not hyperbolic to call the drug epidemic in this country a human and social tragedy. Appellant’s personal downfall, summarized in footnote 3 of the lead opinion, is all too common.
Law-enforcement efforts, however, are not enough, alone, to remedy this sickness. We cannot—and we do not—give up on the lives and souls of those whose addictions own them; we can—and we do—put huge efforts into helping the helpless regain control of their own destinies. This not only is the morally right thing to do, but also it is socially beneficial.
Rehabilitation of a drug addict is extremely difficult. The physical and psychological torment that the addict experiences is a personal hell that, I am confident, cannot be fully appreciated by anyone who has not suffered the experience. It is, as well, a fragile process—one that is not without inherent steps backward and one that easily can be frustrated by outside influences.
Id. at 361. But this is not a case in which an alcoholic is given alcohol to drink or a cocaine user is given cocaine to use. Instead, this is an instance in which an individual who had sold cocaine in the past was willing to become a distributor for profit, a merchant in the spread of human misery that is this country’s drug epidemic.
III
In our prior opinion Judge Cox did not find a knowing targeting of an individual in a drug rehabilitation program. Chief Judge Sullivan, concurring in the result, indicated the case need not be resolved on [420]*420the agent’s lack of knowledge because the regulations prohibit gathering information from individuals in a drug rehabilitation program and not a “sting” operation.
Senior Judge Everett recognized the evils of drug abuse, the importance of rehabilitation, and the difficulty of rehabilitating individuals who had been involved in drugs. He believed that the regulations required that participants in the drug rehabilitation program
be left alone, free from any government contacts that might well frustrate the successful rehabilitation of the patient. Any action that might psychologically lure a flawed and vulnerable addict back into the environment he is trying so mightily to shun is morally reprehensible and legally proscribed.
Id. at 362.
IV
Both the federal criminal law system and the military criminal law system have varied sources of rights. The hierarchical sources of rights in the military include the Constitution; Federal statutes, e.g., the Uniform Code of Military Justice; the Executive Orders containing the Military Rules of Evidence and the Rules for Courts-Martial; Department of Defense directives; service directives; and federal common law. The varied sources in the Federal system include the Constitution, Federal statutes, Federal Rules of Criminal Procedure, Federal Rules of Evidence, and common law. These sources are set forth in terms of paramountcy. Even so, service directives may set forth greater rights than required by the Constitution, the Code, or the Manual for Courts-Martial, United States, 1984.
In determining whether the charges should be dismissed for a violation of service directives, examination must be made of the Supreme Court decisions concerning the nature of the directive and those discussing the dismissal remedy for prosecutorial misconduct under the Federal Rules of Criminal Procedure and constitutional violations by investigators.
V
The regulations applicable to this case are an outgrowth of 21 USC § 1101 et seq., first enacted in 1972. Congress was determined to have a national policy which focused the resources of the Federal Government on drug abuse, hoping to reduce significantly the incidence of drug abuse, as well as the social and personal cost to the country. Congress also sought to ensure that a long-term strategy was developed by various departments of the Government to combat drug abuse.
The Army’s program was an outgrowth of this strategy. To encourage individuals to take advantage of the Army drug abuse rehabilitation program, a series of rules were set up to encourage individuals on their own initiative to identify themselves and enter the programs for treatment and rehabilitation. However, AR 600-85 has a “limited-use policy” which provides for the free flow of information and prevents misuse of this information.2 The program was [421]*421not intended to protect a soldier attempting to avoid disciplinary or adverse action. The limited-use policy did not grant immunity but provided that, if there was a self-referral or a command referral, information concerning illegal drug abuse or evidence of incidental possession for personal use obtained as part of medical care or rehabilitative treatment may not be used by law enforcement.3 This limited use of the information applied whether there was command referral or referral by the individual himself or herself. Only drug use or possession incidental to normal use was protected.4 It did not protect an individual in terms of an immunity or a limited-use policy as to information regarding sales or distribution, and we agree with the rationale of Chief Judge Sullivan as expressed below that it would not protect appellant in this case:
Paragraph 3-7, Army Regulation 195-2 (30 Oct.1985) ... prohibited ... the gathering of information, not the conducting of a “sting” operation____
The regulations do proscribe placement of informants in these programs, and use of information gathered by informants or undercover agents against the patients of such a program. However, these regulations cannot be reasonably construed to give patients immunity for post-entry drug offenses observed and participated in by government agents or informants.
33 MJ at 359-60.
However, even if we were to read these regulations to protect appellant from buying drugs, under a series of Supreme Court cases, appellant would not be entitled to dismissal of the charges.
VI
In Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988), the Court indicated in an 8-1 opinion that it was inappropriate for the Federal courts to dismiss indictments in the absence of prejudice. The trial court in Bank of Nova Scotia found a number of violations of Fed.R.Crim.P. 6 governing grand-jury proceedings. Even so, the Supreme Court con[422]*422sidered and rejected use of the dismissal remedy without examining for prejudice. To hold otherwise, the Court indicated, would be a violation of the commands of Fed. R. Crim. P. 52(a), which requires the Federal courts to disregard “[a]ny error ... which does not affect [the] substantial rights” of the accused. “It follows that Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress____” Id. at 255, 108 S.Ct. at 2373. The Court also noted that there was no “history of prosecutorial misconduct” spanning a number of years so “as to raise a substantial” or “serious question” of a systemic problem. Id. at 259, 108 S.Ct. at 2376. Applying the prejudice test, the Court indicated that the critical issues are: what effect the error had or reasonably may be taken to have had on the grand jury’s decision; whether it has been “established that the violation substantially influenced the grand jury’s decision to indict”; or whether there exists “grave doubt” that the indictment “was free from the substantial influence of [the] violations.” Id. at 256, 108 S.Ct. at 2374. The Court noted that Fed.R.Crim.P. 52 had a statutory base and had the same “force and effect” as a statute. Id. at 255, 108 S.Ct. at 2373. Thus, a Federal court has no “discretion to disregard the Rule’s mandate” because to do so would “disregard constitutional or statutory provisions.” Id. at 255, 108 S.Ct. at 2374. Justice Kennedy went on to state: “The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked ‘because a court has elected to analyze the question under the supervisory power.’ ” Id. at 255, 108 S.Ct. at 2374, quoting United States v. Payner, 447 U.S. 727, 736, 100 S.Ct. 2439, 2447, 65 L.Ed.2d 468 (1980). The majority noted that this case should be distinguished from “a class of cases in which indictments are dismissed” because “the prejudicial impact” is so great there are deemed to be fundamental errors. An example would be the discriminatory selection of a grand jury. 487 U.S. at 256-57, 108 S.Ct. at 2374-75. Even so, the courts must look to see whether alternative remedies are available. Id. at 257, 108 S.Ct. at 2374.
Likewise, in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), the Court held dismissal is not an appropriate remedy for misconduct in the indictment process when the error had been rendered harmless. The Court in Mechanik assumed that there had been a violation of Fed.R.Crim.P. 6(d) by the presence of other than specified persons, but indicated that the error was harmless based upon the factfinder’s subsequent guilty verdict. Thus, an error cannot be considered other than harmless where it would not have influenced the decision of the fact-finder.
Even when there have been allegations of flagrant and persistent prosecutorial misconduct, as in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Court held that a court should not mandate automatic reversal without regard to the prejudicial impact of the misconduct, even where the conduct was occurring “with disturbing frequency ... throughout th[e] circuit.” Id. at 504, 103 S.Ct. at 1978. The Court insisted upon the harmless-error test being applied.
The harmless-error analysis should be applied in lieu of post-conviction dismissals. The Court in Hasting indicated within certain parameters that Federal courts may exercise their “supervisory powers ... within limits [to] formulate procedural rules not specifically required by the Constitution or the Congress.” Id. at 505, 103 S.Ct. at 1978. The implication is that the harmless-error rule should be applied unless there is no reasonable alternative to dismissal. Id. at 506 n.5, 103 S.Ct. at 1979 n. 5. The same rule would be binding on the Court of Military Appeals as to application of Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
The Supreme Court also has not permitted employment of the exclusionary rule for violation of Internal Revenue Service regulations prohibiting consensual electronic surveillance between taxpayers and IRS agents absent prior authorization. United [423]*423States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). In Caceres the Court in a 7-2 opinion noted that neither the Constitution nor a Federal statute requires an official to approve consensual electronic surveillance. The duty to enforce an agency regulation is most evident when compliance is mandated by either the Constitution or a statute to ensure a basic right. Bridges v. Wixon, 326 U.S. 135, 152-53, 65 S.Ct. 1443, 1451-52, 89 L.Ed. 2103 (1945). However, an error in interpreting the regulation does not give rise to a Constitutional question. “Nor is ... the Due Process Clause ... implicated because an individual has reasonably relied on agency regulations promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency.” 440 U.S. at 752-53, 99 S.Ct. at 1471-72. To adopt
a rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures. Here, the Executive itself has provided for internal sanctions in cases of knowing violations of the electronic-surveillance regulations. To go beyond that, and require exclusion in every case, would take away from the Executive Department the primary responsibility for fashioning the appropriate remedy for the violation of its regulations.
Id. at 755-56, 99 S.Ct. at 1473-74 (footnotes omitted). The Court indicated that such a result might lead to “fewer and less protective regulations.” Id. at 756, 99 S.Ct. at 1474. It would certainly seem more desirable to enforce these rules through the regulatory process, rather than having no rules to protect those who are in drug rehabilitation programs. As the Court stated in Caceres:
In the long run, it is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form.
Id. at 756, 99 S.Ct. at 1474. The Court indicated that suppression of evidence should not be granted in the exercise of supervisory power. Id. at 757, 99 S.Ct. at 1474. Otherwise, it “would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing____ [T]he supervisory power does not extend so far.” United States v. Payner, 447 U.S. at 737, 100 S.Ct. at 2447.
Recently the Court stated in United States v. Alvarez-Machain, — U.S.-, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992):
Respondent and his amici may be correct that respondent’s abduction was “shocking,” ____ [but] the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch.
Id. at -. 112 S.Ct. at 2196 (footnote omitted).
The Court in Payner and Hasting showed displeasure with the Federal courts exercising their supervisory power while disregarding the rules of criminal procedure or the constitutional decisions of the Court. It also indicated in Hasting that “reversals of convictions under the Court’s supervisory power must be ‘approached with some caution.’ ” 461 U.S. at 506-07, 103 S.Ct. at 1979. The Court expressed dissatisfaction that the Court of Appeals in dismissing the charges in Hasting did not consider a trauma to the victim of a particular heinous crime or the practical problems of retrying the case 4 years after the event.
These decisions are binding on the Federal Courts of Appeals and the Court of Military Appeals, all subject to the direct review of the Supreme Court.
YII
This does not mean that we necessarily condone the law enforcement conduct that took place in this case. One cannot help but feel sympathy for a defen[424]*424dant caught up in these circumstances. However, this does not give rise to use of this Court’s supervisory authority to dismiss the charges, particularly when those in charge of enforcing the regulations could take action on their own, but have not chosen to do so.
Even though Powell, a non-government informant, admitted knowing that appellant had been in a drug rehabilitation program in California, this knowledge should not be imputed to the Government. A parallel situation occurs when deliberately false or reckless statements made by non-government informants are not imputed to police officers. See United States v. Henry, 933 F.2d 553 (7th Cir.1991). The Supreme Court indicated it would leave this imputation question for another day. In Franks v. Delaware, 438 U.S. 154, 170, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), the Court stated:
[B]ecause we are faced today with only the question of the integrity of the affiant’s representations as to his own activities, we need not decide, and we in no way predetermine, the difficult question whether a reviewing court must ever require the revelation of the identity of an informant____
This is not an instance of an individual expressly recruited and hired to work on a case. Powell was seeking help because of his own arrest, had agreed to work with law enforcement officials, and was compensated for his tips.
The handler testified that he did not know that appellant was in a drug rehabilitation program until the trip to Washington, D.C., to make the first purchase. He further testified that he was not aware of the Army regulations governing use of information garnered from individuals in the drug rehabilitation program. While his ignorance of applicable regulations is regrettable, it should not give rise to dismissal of the charges.
If we were to take action such as dismissing the charges, it could have a chilling effect on the formulation of additional standards by the Executive Department. There are a variety of tools available to the Executive Branch to determine whether a violation of its regulations has occurred and, if so, what action should be taken against those violating the regulations, e.g., prosecution under Article 92, UCMJ, 10 USC § 892, administrative actions against the responsible individuals, and notations on fitness reports.
Appellant should have no right to a dismissal of the charges against him because the alleged violations of internal policy rules did not in any way affect the facts presented as to whether the crime was permitted. This is not an instance of a violation of a regulation resulting in introduction of unreliable evidence.
VIII
In Jacobson v. United States, — U.S.-, 112 S.Ct. 1535, 118 L.Ed.2d 147 (1992), the Supreme Court held that the Government’s sting operation amounted to entrapment when after more than 26 months of communicating with a target via mailed pamphlets, “pen-pal” letters, attitude surveys, and catalogs, they finally persuaded him to order a magazine containing child pornography. The majority recognized that the Government may use undercover agents and various stratagems to catch those engaged in criminal activities. Citing prior case law the majority said that “however, Government agents may not originate a criminal design, and plant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Id. at -, 112 S.Ct. at 1540. See also United States v. Whittle, 34 MJ 206 (CMA 1992).
RCM 916(g), Manual, supra, sets forth two elements for the entrapment defense: “It is a defense that the criminal design or suggestion to commit the offense originated in the Government and that the accused had no predisposition to commit the offense.” The first element is referred to as the inducement element and the second, as the predisposition element. As in Jacobson and in this case, the inducement element is [425]*425not an issue as the Government does not dispute that appellant was induced to commit the crime. The sole issue is the predisposition element. In Jacobson, the Court indicated that, when “the defense of entrapment is at issue, ... the prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” — U.S. at-, 112 S.Ct. at 1540. The predisposition element could be established by the following: reasonable suspicion that the defendant has been involved with the sale of cocaine in the past5 or evidence that the person drawn to the opportunity was predisposed to engage in the contemplated illegal activity. How a person behaves on a particular occasion is some evidence of predisposition.
The latter may be shown circumstantially by introducing evidence of the following: accused merely afforded opportunity to commit the crime, Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); a single invitation without any fraud or trickery, United States v. Suter, 21 USCMA 510, 515, 45 CMR 284, 289 (1972); informant not a friend of accused, United States v. McGlenn, 8 USCMA 286, 24 CMR 96 (1957); a profit motive, United States v. Hebert, 1 MJ 84 (CMA 1975); or a ready response to informant’s initial suggestion, United States v. Williams, 3 MJ 555 (ACMR 1977), rev’d on other grounds, 4 MJ 336 (CMA 1978).
“The sole piece of preinvestigation evidence” in Jacobson was a “1984 order” to lawfully receive a magazine entitled “Bare Boys.” — U.S. at-, 112 S.Ct. at 1541. Justice White concluded in Jacobson: “Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal.” Id. at-, 112 S.Ct. at 1542.
There was more than a “sole piece of ... evidence” in this case.6 There was evidence that appellant had used and sold cocaine in the past. In fact, he bragged about the ability to make crack from powdered cocaine. Second, depending on whose testimony you accept, there was either a single invitation to distribute drugs or three invitations within a short period of time; and the invitation was accepted by appellant. Additionally, at least on one occasion, appellant indicated that he would like his profit and showed his willingness to buy other drugs for the government agent anytime before his wife’s arrival.
Lastly, this case does not involve outrageous government conduct. See, e.g., United States v. Winslow, 962 F.2d 845, 849 (9th Cir.l992)(furnishing bomb components not outrageous conduct).
The decision of the United States Army Court of Military Review is affirmed.