## UNITED STATES ARMY COUR T 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 In fantry Division David L. Conn, Mili tary Judge (trial) Stefan R. Wolfe, Militar y Judge (pretrial motions) Major Christopher M. Fo rd, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Michael S. Devine , Staff Judge Advocat e (recommendation)

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA; Captain Patrick A. Crocker, JA (on brief); Major Christopher D. Coleman, JA; Captain Cody Cheek, JA (on brief in respon se 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. Collin s, 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 genera l 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 1 20, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The panel sentenced appellant
to a bad-conduct disc harge, three months confinement, forfeitu re of $785.00 pay per

month for three months , and reduction to the grade of E-1. The convening authority approved the findings an d 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 se ntence, we need not discuss the three assignments of error rais ed by appellant or the matte rs 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 wh ich we find merits di scussion and relief:

WHETHER PUBLISHING TO THE PANEL PORTIONS
OF THE APPELLANT’S STATEMENT CONTAINED IN
PROSECUTION EXHIBIT TW O 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 In vestigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence. Because the governm ent informed the court that it did not have a disk containing only the portions it wished to pub lish, the militar y judge felt the need to advise the panel that they wo uld not have this piece of “evidence” when they closed to deliberate. The military judge made th e following statement to the panel

Members, I guess, before we do play this I wa nt to advise you that you will not have th is 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 on ly playing portions rather
than the entire interview. So, just for your purposes, you will have to rely on your no tes and your memory with regard to the exact cont ents of the statement.

Trial counsel then proceeded to play portions of the interview for the panel. Both the military judge and trial co unsel referred to these excerp ts as evidence at various stages of the trial both befo re and after its publication to the panel. Trial counsel referred to the excerp ts during closing an d 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 errorCASTILLEJO—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 St ates 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 prejud icial to a subs tantial right).

We find that an error was made when trial counsel pu blished 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 wi thout admitting it into evidence is plain an d obvious error. Appellee ci tes to a differe nt persuasive authority to reach the co ntrary 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 ev idence, despite no ruling on its admissibil ity by the president. Id . at 841. The cour t found “more than ample indications in the record that [the ex hibit] was actually admitted into evidence even though no express words so admitt ing it were spoken by the president. Id. In Daily , the recorded statement was neither offere d nor admitted into evidence prior to its publication to the panel. Daily , 18 C.M.R. at 430. Likewi se in the ca se at hand,
the recorded CID statement wa s neither offered nor admitt ed into evidence. Indeed, this court does not find “ampl e indications” that the recorded CID statement was even offered into evidence, much less admitted.

We next find that this error was plai n and obvious. In United States v. Nunez

, ARMY 20100703, 2012 CCA LEXIS 176 (Army Ct. Cr im. App. 11 May 2012) (mem.op.), this court held th at publishing a photograp hic exhibit to the panel without admitting it into evidence was plai n and obvious error. The similar set of
facts between Nunez and the case at bar merits a consistent ho lding. Befo re being published to the panel, the prosecution exhibit was refere nced by the military judge as evidence in the trial. However, du ring 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 er ror 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)(interna l citations omitted). When we assess prejudicial impa ct, we look to “(1) the severity of the misconduct, (2) the measures adopted to cure th e 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 ag ree with appellant to the effect that th e government’s use of the video exhibit was “extensive, pervasive, and highly prejudicial.” Before publishing the exhibit to the panel member s, the military judg e referred to theCASTILLEJO—ARMY 20130507

4 exhibit as evidence. Clearly the members we re expected to consider the recording of
the accused’s statement as ev idence, 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 su bstance of the video was li kely 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 referre d to it as eviden ce for the panel
to consider in its deliberations. Furthe rmore, despite acknowle dging that the video statement was published to the panel but ne ver admitted into evidence, the military judge gave no curative instruction to th e panel. Accordingly, we cannot be reasonably confident that the accused wa s convicted on the basis of the evidence
alone.

CONCLUSION

On consideration of the entire recor d, we find the military judge committed plain error that prejud iced a substantial right of the appellant. Th e findings of guilty
and the sentence are set aside. A rehear ing 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 th e exhibit’s prejudicial impact, because there are discrepancies in the record concerning exactly which time hacks of the DVD were pl ayed for the panel. Compare R. at 180 (the prosecution
states its intend ed 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: