UNITED STATES, Appellee

v.

Eric R. CASTILLO, Sergeant

U.S. Army, Appellant

No. 14-0457

Crim. App. No. 20110935

United States Court of Appeals for the Armed Forces 

Argued October 21, 2014

Decided February 12, 2015

BAKER, C.J., delivered the opinion of the Court, in which

ERDMANN and OHLSON, JJ., joined. STUCKY, J., filed a separate 

concurring opinion. RYAN, J., filed a separate opinion 

concurring in the result.

Counsel

For Appellant: Captain Aaron R. Inkenbrandt (argued); Colonel 

Kevin Boyle, Lieutenant Colonel Jonathan F. Potter, and Captain 

Michael J. Millios (on brief); Lieutenant Colonel Peter 

Kageleiry Jr. and Major Vincent T. Shuler.

For Appellee: Captain Janae M. Lepir (argued); Colonel John P. 

Carrell, Lieutenant Colonel James L. Varley, and Major Kenneth 

W. Borgnino (on brief).

Military Judge: T. Mark Kulish

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Castillo, No. 14-0457/AR

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Chief Judge BAKER delivered the opinion of the Court.

Contrary to his pleas, a general court-martial composed of 

officer and enlisted members at Camp Humphreys, Republic of 

Korea, convicted Appellant of rape and assault consummated by 

battery, in violation of Articles 120 and 128, UCMJ, 10 U.S.C. 

§§ 920, 928 (2006). He was sentenced to confinement for two 

years, forfeitures of all pay and allowances, reduction to the 

lowest enlisted grade, and a dishonorable discharge. The 

convening authority reduced the term of confinement by one 

month, and the United States Army Court of Criminal Appeals 

summarily affirmed. United States v. Castillo, No. ARMY 

20110935 (A. Ct. Crim. App. Jan. 29, 2014) (per curiam). We 

granted review of a single issue:

WHETHER, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE 

MILITARY JUDGE ERRED IN DENYING THE DEFENSE IMPLIED 

BIAS CHALLENGE AGAINST LTC DS IN LIGHT OF HIS PERSONAL 

EXPERIENCE AS A SEXUAL ASSAULT VICTIM, HIS DIRECT 

SUPERVISORY ROLE OVER TWO OTHER MEMBERS, HIS ONGOING 

RELIANCE ON THE TRIAL COUNSEL FOR MILITARY JUSTICE 

ADVICE, THE PRESENCE OF FOUR OTHER MEMBERS WHO ALSO 

RECEIVED MILITARY JUSTICE ASSISTANCE FROM THE TRIAL 

COUNSEL, AND THE FACT THAT THE PANEL WAS SELECTED 

EXCLUSIVELY FROM APPELLANT’S BRIGADE. 

For the reasons stated below, we conclude that the military 

judge did not err in denying the implied bias challenges raised 

by the defense. In contrast to United States v. Peters, __ M.J. 

__ (C.A.A.F. 2015), the panel members’ relationships with trial 

counsel in this case were not of a qualitative nature to rise 
United States v. Castillo, No. 14-0457/AR

3

above the normative sorts of relationships expected in military 

service that could impact perceptions of fairness.

Background

Appellant was charged with raping and assaulting Specialist 

CC while stationed in Korea. Following individual voir dire, 

trial defense counsel challenged several panel members on the 

basis of actual and implied bias. The military judge granted 

the defense’s challenge for cause against a panel member whose 

wife had been the victim of sexual assault, but denied the other 

challenges. This appeal centers on the defense’s challenge for 

cause against Lieutenant Colonel (LTC) DS.

During voir dire, LTC DS testified that he had been a 

victim of sexual assault as a child “twenty, almost thirty years 

ago.” He testified that the assault would not impact his 

ability to judge the case, because he did not view the case on 

trial “as the same issue at all.” He also testified that he was 

acquainted with the trial counsel:

Q. Captain Sandys, how is it that you know him?

A. He’s the brigade trial counsel for the aviation 

brigade.

Q. How often do you interact with him?

A. Once every week or once every other week. It depends 

on the individuals that we’re having any military justice 

issues with. 
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Q. Have you personally consulted with him with respect to 

military justice related issues?

A. Yes, I have.

Q. In what way?

A. Asking his opinion on charges I’m bringing up against 

Soldiers under my command.

Q. And how did you view his advice?

A. Very well.

Q. Your view was that he gave you sound advice?

A. He gave me confident advice, yes.

Q. Did you use that advice to then make recommendations to 

your own commander?

A. Sometimes. Sometimes I agree with him and sometimes I 

do not.

Q. And you said that this was on a weekly to bi-weekly 

basis?

A. Roger.

Q. How long have you known my colleague?

A. I’ve been in command for 90 days, so since I took 

command 90 days ago. 

Prior to challenging LTC DS for cause, the defense brought 

a challenge against a separate panel member, LTC James Duncan, 

on the grounds that he supervised three panel members and on the 

basis of his relationship with trial counsel, who served as the
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5

brigade trial counsel.1 As to his interaction with trial 

counsel, the defense argued:

CDC: Lieutenant Colonel Duncan . . . regularly meets with 

his brigade judge advocate I think is the right term for 

Captain Sandys. Regularly meets with him, he has a very 

favorable view of -- well he has a favorable view of 

Captain Sandys’s legal advice and Captain Sandys is going 

to continue to serve as his legal advisor[,] and I just 

don’t see how you can have a panel member whose lawyer, 

organization counsel, is serving as a prosecutor. You 

certainly would never have a case where the defense 

attorney’s former client was on the panel.

The military judge denied the challenge for cause, finding 

that he relies on Captain Sandys’s advice “in part,” and “he 

doesn’t rely on him exclusively or follow his advice

automatically.” The defense then brought the following 

challenge for cause against LTC DS:

CDC: With respect to [LTC DS], sir, it’s a nearly 

identical argument to [the defense’s previous challenge to 

LTC Duncan,] with the addition of two issues. One is going

to be on experiences as a victim. And two is going to be 

his additional [sexual assault] training as an ROTC 

professor . . . . 

The military judge denied the challenge for cause, finding 

that:

[LTC DS] sometimes agrees with Captain Sandys’ advice and 

sometimes not. So even over a period of three months, 

there have been times when he’s disagreed with the advice 

that Captain Sandys has given him as brigade trial counsel.

 

1 LTC Duncan was later the subject of a defense peremptory 

challenge, and one of the panel members he supervised was 

subject to a Government peremptory challenge. 
United States v. Castillo, No. 14-0457/AR

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. . . With regard to the fact that [LTC DS] may have been 

molested in some way when he was a child, he, again without 

prompting, said there would be no effect here and “it is 

not the same issue at all.” . . . With regard to this 

course at Western Michigan University, he and all the other 

members of the faculty sat through a sexual assault 

prevention course . . . . So the court finds no actual bias 

and finds further that viewed objectively through the eyes 

of the public, an objective observer would not have a 

substantial [doubt] about the fairness of the accused’s 

court-martial panel if [LTC DS] served as a member and I 

have considered the liberal grant mandate.

The defense also brought challenges against three other 

panel members -- Command Sergeant Major (CSM) Felicioni, CSM 

Merriwether, and Captain (CPT) Little -- on the basis of their 

interaction with trial counsel in his capacity as the brigade 

trial counsel. The military judge denied these challenges, 

finding that their interactions amounted to no more than

receiving information regarding cases in the military justice 

system. 

Analysis

We review implied bias challenges pursuant to a standard 

that is less deferential than abuse of discretion, but more 

deferential than de novo review. United States v. Moreno, 63 

M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46 

M.J. 279, 283 (C.A.A.F. 1997). 

R.C.M. 912(f)(1)(N) sets the basis for an implied bias 

challenge, which stems from the:
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“historic concerns about the real and perceived 

potential for command influence” in courts-martial. 

Unlike the test for actual bias, this Court looks to 

an objective standard in determining whether implied 

bias exists. The core of that objective test is the 

consideration of the public’s perception of fairness 

in having a particular member as part of the courtmartial panel. In reaching a determination of whether 

there is implied bias, namely, a “perception or 

appearance of fairness of the military justice 

system,” the totality of the circumstances should be 

considered. While cast as a question of public 

perception, this test may well reflect how members of 

the armed forces, and indeed the accused, perceive the 

procedural fairness of the trial as well. 

Peters, __ M.J. at __ (8) (citations omitted). Applying these 

standards to this case, we conclude that the military judge did 

not err in denying Appellant’s challenge for cause on the 

following grounds, or based on the cumulative effect of these 

grounds.

LTC DS’s Experience as a Sexual Assault Victim

There is no per se rule that a panel member must be excused 

because he or she has been the victim of a similar crime. See

United States v. Smart, 21 M.J. 15, 19 (C.M.A. 1985) (“The 

[crimes] of which [the member] had been a victim did not of 

themselves disqualify him to participate in trying appellant.”). 

A panel member’s experience as a victim similar in theme or

close in time to the charged offense may, in some cases, present 

an issue of implied bias. United States v. Daulton, 45 M.J. 

212, 217 (C.A.A.F. 1996). No such relationship exists in this 

case. Moreover, the military judge found LTC DS’s statement 
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that he did not view his experience as a victim as “the same 

issue at all” to be credible, and concluded, “based on observing 

his demeanor . . . that the incident will not affect [LTC DS’s] 

deliberations in this case.” These statements are not 

dispositive. However, the statements in tone and content as 

well as the absence of a presumptive rule of disqualification 

supports the military judge’s decision. Thus, the military 

judge did not err in denying the challenge for cause.

LTC DS’s Relationship with Trial Counsel

[I]n military practice, the qualitative nature of the 

relationships between trial attorneys and officers in 

the commands those attorneys advise will cover a wide 

range of experiences. Some officers . . . will 

establish a close personal and professional bond [with 

the attorneys, or] the contact may be singular or 

passing; formal and professional, but not indicative 

of special deference or bonding. 

United States v. Richardson, 61 M.J. 113, 119 (C.A.A.F. 

2005). Here, in contrast to Peters, __ M.J. at __ (3), there is 

no evidence of a personal bond or a particularly deferential

professional bond. Further, LTC DS had only been in his 

position ninety days, a fact that weighs against a finding of 

implied bias. The military judge did not err.

LTC DS’s Rating of Two Panel Members

“It is well settled that a senior-subordinate/rating

relationship does not per se require disqualification of a panel 

member.” United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 
United States v. Castillo, No. 14-0457/AR

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2001) (citations omitted). LTC DS’s rating of CPT Little and 

CSM Merriwether did not require the military judge to excuse LTC 

DS in the context of this case, given the broader composition of 

the panel. Further, the military judge concluded that all three 

panel members “credibly disclaimed that they would feel any 

restraint or discomfort in freely expressing their views during 

deliberations if they all three remained on the panel.” 

Other Members’ Favorable Impressions of Trial Counsel

Apart from LTC DS, CSM Felicioni, CSM Merriwether, and CPT 

Little received information from trial counsel regarding 

military justice matters, and CSM Felicioni once played cards 

with trial counsel. These facts do not constitute a claim of 

close personal or deferential professional bonding under 

Richardson, 61 M.J. at 119, and the military judge did not err.

The Panel Was Drawn Entirely from Appellant’s Brigade and

Cumulative Error

Appellant did not raise the issue of panel members being 

drawn exclusively from his brigade at trial, and as a result, 

this issue is waived as a discrete ground for challenge. Rule 

for Courts-Martial 912(f)(2)(4). Nonetheless, Appellant asserts 

this issue along with the other asserted grounds for a finding 

of implied bias in their cumulative effect. 

“It is well-established that an appellate court can order a 

rehearing based on the accumulation of errors not reversible 
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individually.” United States v. Dollente, 45 M.J. 234, 242 

(C.A.A.F. 1996). Appellant cites no authority indicating that a 

panel drawn entirely from one brigade, including this brigade in 

Korea, is an unusual or unlawful practice in the military

justice system. As a result, Appellant’s asserted errors lack 

merit, and they do not combine to create error.

Conclusion

The military judge did not err in denying Appellant’s 

challenges for cause. Accordingly, the decision of the United 

States Army Court of Criminal Appeals is affirmed.
United States v. Castillo, No. 14-0457/AR

STUCKY, Judge (concurring):

I join the majority’s opinion with one reservation. The 

majority opinion quotes United States v. Peters, __ M.J. __ (8) 

(C.A.A.F. 2015), to say: “While cast as a question of public 

perception, this [implied bias] test may well reflect how 

members of the armed forces, and indeed the accused, perceive 

the procedural fairness of the trial as well.” United States v. 

Castillo, __ M.J. __ (7) (C.A.A.F. 2015). This sentence appears 

to expand the ambit of the “public perception” test contrary to 

our case law: The accused’s perception of the fairness of his 

trial has never been part of the implied bias test. I write 

separately solely to clarify that the test for implied bias is a 

question of public perception only. 
United States v. Castillo, 14-0457/AR

RYAN, Judge (concurring in the result):

We have long held that a military judge is entitled to 

deference on issues of implied bias under Rule for CourtsMartial 912(f)(1)(N), if less deference than on issues of actual 

bias. United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 

1997). I stand by this Court’s guidance in United States v.

Clay, 64 M.J. 274 (C.A.A.F. 2007): “[W]here a military judge 

considers a challenge based on implied bias, recognizes his duty 

to liberally grant defense challenges, and places his reasoning 

on the record, instances in which the military judge’s exercise 

of discretion will be reversed will indeed be rare.” Id. at 

277. 

It is my view that, where the correct law is recognized and 

there is no erroneous application of the law or view of the 

facts, military judges should receive the deference to which 

they are entitled under our precedent on matters of implied 

bias. This Court is better suited to remind military judges 

that challenges are to be liberally granted -- and, relatedly, 

that excusing a member on the basis of implied bias is not a 

condemnation of any particular member’s sincerity, integrity, or 

fitness -- than to review on a case-by-case basis how much 

qualitative and quantitative contact between a convening 

authority and a trial counsel who serves as the legal counsel 
United States v. Castillo, 14-0457/AR

2

for that convening authority a member of the public would view 

as unfair. 

This Court has repeatedly eschewed a bright-line rule

requiring military judges to grant challenges for cause on the 

basis of implied bias against members who have or have had a 

professional relationship with legal counsel. See United States 

v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998) (holding a member’s 

“professional relationship with the trial counsel was not per se 

disqualifying”); United States v. Hamilton, 41 M.J. 22, 25 

(C.M.A. 1994) (finding no “per se ground for challenge” where 

three members had received legal assistance from the assistant 

trial counsel); see also United States v. Peters, __ M.J. __, __ 

(1-2) (C.A.A.F. 2015) (Ryan, J., dissenting). However 

reasonable I might find such a bright-line rule in the case of 

an implied bias challenge against a commanding officer sitting 

as a panel member, even as her legal advisor served as trial 

counsel, if presented with it as a matter of first impression, I 

agree that the military judge should receive deference. I

respectfully concur in the result.