UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist HUGO E. CASTILLEJO 

United States Army, Appellant 

ARMY 20130507 

Headquarters, 7th Infantry Division 

David L. Conn, Military Judge (trial) 

Stefan R. Wolfe, Military Judge (pretrial motions) 

Major Christopher M. Ford, Acting Staff Judge Advocate (pretrial) 

Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (recommendation) 

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain 

Patrick A. Crocker, JA (on brief); Major Christopher D. Coleman, JA; Captain Cody 

Cheek, JA (on brief in response to specified issues). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain 

Tara E. O’Brien, JA (on brief); Colonel Mark H. Sydenham, JA; Lieutenant Colonel 

A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on 

brief in response to specified issues). 

20 June 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

An enlisted panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of sexual assault and one specification of 

abusive sexual contact, both in violation of Article 120, Uniform Code of Military 

Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The panel sentenced appellant 

to a bad-conduct discharge, three months confinement, forfeiture of $785.00 pay per 

month for three months, and reduction to the grade of E-1. The convening authority 

approved the findings and sentence as adjudged. 
CASTILLEJO—ARMY 20130507 

2

Appellant’s case is before this court for review under Article 66, UCMJ. As 

our relief consists of setting aside the findings and sentence, we need not discuss the 

three assignments of error raised by appellant or the matters personally submitted by 

appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). This 

court specified the issue following issue which we find merits discussion and relief: 

WHETHER PUBLISHING TO THE PANEL PORTIONS 

OF THE APPELLANT’S STATEMENT CONTAINED IN 

PROSECUTION EXHIBIT TWO FOR IDENTIFICATION 

WITHOUT ITS ADMISSION INTO EVIDENCE 

CONSTITUTES ERROR. 

BACKGROUND 

During appellant’s trial the government played certain portions of the 

appellant’s interview with a U.S. Army Criminal Investigation Command (CID) 

Special Agent (SA). These excerpts were played for the panel without ever being 

admitted into evidence. Because the government informed the court that it did not 

have a disk containing only the portions it wished to publish, the military judge felt 

the need to advise the panel that they would not have this piece of “evidence” when 

they closed to deliberate. The military judge made the following statement to the 

panel 

Members, I guess, before we do play this I want to advise 

you that you will not have this DVD, the recording, to 

take back with you. So what you are going to hear is 

going to be your opportunity to review this evidence, so, 

just so that you’re aware. Typically, you would have the 

recording; but under the circumstances we’re just going to 

play it for you since we’re only playing portions rather 

than the entire interview. So, just for your purposes, you 

will have to rely on your notes and your memory with 

regard to the exact contents of the statement. 

Trial counsel then proceeded to play portions of the interview for the panel. Both 

the military judge and trial counsel referred to these excerpts as evidence at various 

stages of the trial both before and after its publication to the panel. Trial counsel 

referred to the excerpts during closing and rebuttal argument. 

DISCUSSION 

As no objection was levied during the publication of the exhibit, the military 

judge’s instructions, or the trial counsel’s closing, we review for plain error. See

United States v. Knapp, 73 M.J. 33 (C.A.A.F. 2014). This court looks for plain error 
CASTILLEJO—ARMY 20130507 

3

by employing a three-pronged test: 1) an error exists, 2) the error is plain or 

obvious, and 3) the error materially prejudiced a right of the accused. Knapp, 73 

M.J. at 36; see also United States v. Erickson, 65 M.J. 221, 223-24 (C.A.A.F. 2007) 

(holding that an appellant must prove not only that there was error but also that it 

was plain or obvious and materially prejudicial to a substantial right). 

We find that an error was made when trial counsel published portions of the 

appellant’s CID statement to the panel without its admission into evidence. 

Appellant cites to United States v. Daily, 18 C.M.R. 428 (N.B.R. 1955), as 

persuasive authority to find that publication of a recording without admitting it into 

evidence is plain and obvious error. Appellee cites to a different persuasive 

authority to reach the contrary conclusion that there was not error. United States v. 

Darby, 5 C.M.R. 840 (A.F.B.R. 1952). We find Daily to be more persuasive. In 

Darby, the record reflected an express offer of the exhibit into evidence, despite no 

ruling on its admissibility by the president. Id. at 841. The court found “more than 

ample indications in the record that [the exhibit] was actually admitted into evidence 

even though no express words so admitting it were spoken by the president. Id. In 

Daily, the recorded statement was neither offered nor admitted into evidence prior to 

its publication to the panel. Daily, 18 C.M.R. at 430. Likewise in the case at hand, 

the recorded CID statement was neither offered nor admitted into evidence. Indeed, 

this court does not find “ample indications” that the recorded CID statement was 

even offered into evidence, much less admitted. 

We next find that this error was plain and obvious. In United States v. Nunez, 

ARMY 20100703, 2012 CCA LEXIS 176 (Army Ct. Crim. App. 11 May 2012) 

(mem.op.), this court held that publishing a photographic exhibit to the panel 

without admitting it into evidence was plain and obvious error. The similar set of 

facts between Nunez and the case at bar merits a consistent holding. Before being 

published to the panel, the prosecution exhibit was referenced by the military judge 

as evidence in the trial. However, during an Article 39(a), UCMJ, session, trial 

counsel and the military judge discussed the fact that the video exhibit was never 

offered or admitted into evidence. 

Finally, we find that this error materially prejudiced a substantial right of the 

accused. “[A]n obvious error materially prejudices the substantial rights of the 

accused when it has an ‘unfair prejudicial impact on the [court members’] 

deliberations.’” United States v. Knapp, 73 M.J. 33, 37 (C.A.A.F. 2014) [citing 

United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998)(internal citations 

omitted). When we assess prejudicial impact, we look to “(1) the severity of the 

misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of 

the evidence supporting the conviction.” United States v. Fletcher, 62 M.J. 175, 184 

(C.A.A.F. 2005). We agree with appellant to the effect that the government’s use of 

the video exhibit was “extensive, pervasive, and highly prejudicial.” Before 

publishing the exhibit to the panel members, the military judge referred to the 
CASTILLEJO—ARMY 20130507 

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exhibit as evidence. Clearly the members were expected to consider the recording of 

the accused’s statement as evidence, and the only reason the members did not have 

access to the video during deliberations was due to technical insufficiencies in the 

government’s software. The substance of the video was likely highly prejudicial to 

the outcome of the trial.*

 While it is not clear precisely what portions of the DVD 

were played before the panel, it is evident from the record that significant portions 

of the appellant’s interview with CID were played. This video was also referenced 

throughout the entire trial, and trial counsel referred to it as evidence for the panel 

to consider in its deliberations. Furthermore, despite acknowledging that the video 

statement was published to the panel but never admitted into evidence, the military 

judge gave no curative instruction to the panel. Accordingly, we cannot be 

reasonably confident that the accused was convicted on the basis of the evidence 

alone. 

CONCLUSION 

On consideration of the entire record, we find the military judge committed 

plain error that prejudiced a substantial right of the appellant. The findings of guilty 

and the sentence are set aside. A rehearing may be ordered by the same or a 

different convening authority. See generally R.C.M. 810. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

*

 It is impossible for this court to assess the full weight of the exhibit’s prejudicial 

impact, because there are discrepancies in the record concerning exactly which time 

hacks of the DVD were played for the panel. Compare R. at 180 (the prosecution 

states its intended time hacks), with R. at 186 (the defense alleges it has been using 

different time hacks). 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: