UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, K.M. MCDONALD, D.C. KING

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ANTONIO M. CASTELLANO

LANCE CORPORAL (E-3), U.S. MARINE CORPS

NMCCA 201100248

GENERAL COURT-MARTIAL

Sentence Adjudged: 21 November 2013.

Military Judge: LtCol David A. Jones, USMC.

Convening Authority: Commanding General, 1st Marine 

Aircraft Wing, Okinawa, Japan.

Staff Judge Advocate's Recommendation: Col J.R. Woodworth, 

USMC (30 Mar 2011 and 21 Apr 2011 Addendum); LtCol J.M. 

Heckel, USMC (24 Apr 2014 and 2 Jun 2014 Addenda).

For Appellant: LT Gabriel Bradley, JAGC, USN; LT Michael 

Magee, USMC.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj Tracey 

Holtshirley, USMC; LT James Belforti, JAGC, USN.

11 December 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

PER CURIAM:

 

This case is before us a second time. A military judge 

sitting as a general court-martial convicted the appellant, 

pursuant to his plea, of one specification of adultery in 
2

violation of Article 134, Uniform Code of Military Justice, 10 

U.S.C. § 934. A panel of members with enlisted representation 

sitting as a general court-martial convicted the appellant, 

contrary to his pleas, of one specification of attempted 

adultery, two specifications of indecent conduct, one 

specification of consensual sodomy, and two specifications of 

assault consummated by a battery, in violation of Articles 80, 

120, 125, and 128, UCMJ, 10 U.S.C. §§ 880, 920, 925, and 928.

The members sentenced the appellant to confinement for 

eighteen months, reduction to pay grade E-1, forfeiture of all 

pay and allowances, and a bad-conduct discharge. The convening 

authority (CA) approved the sentence as adjudged.

On the first appeal, this court set aside the two 

specifications of assault consummated by a battery for 

instructional error, affirmed the remaining findings, and 

affirmed the sentence as approved by the CA. United States v. 

Castellano, No. 201100248, 2012 CCA LEXIS 571, unpublished op. 

(N.M.Ct.Crim.App. 26 Jun 2012) (per curiam). The Court of 

Appeals for the Armed Forces then set aside the appellant’s 

consensual sodomy conviction, affirmed the remaining findings,

set aside the sentence, and authorized a rehearing on the 

consensual sodomy offense and the sentence. United States v. 

Castellano, 72 M.J. 217, 223 (C.A.A.F. 2013). The CA directed a 

rehearing on sentence only.

On rehearing, the members sentenced the appellant to 

confinement for 308 days,1 forfeiture of all pay and allowances, 

reduction to pay grade E-1, a reprimand, and a bad-conduct 

discharge. The CA approved this sentence as adjudged and 

ordered it executed.2

The appellant now raises four assignments of error (AOE)

related to the sentence rehearing: (1) his sentence, which now 

includes a reprimand, is more severe than the sentence approved 

 

1 The appellant had already served 308 days of confinement and had been 

released on parole at the time of his sentence rehearing.

2 To the extent the CA’s action purports to execute the bad-conduct discharge, 

it is a legal nullity. United States v. Tarniewicz, 70 M.J. 543, 544 

(N.M.Ct.Crim.App. 2011). We also note that the CA’s action does not include 

a copy of the letter of reprimand as required by section 0152 of the Manual 

of the Judge Advocate General, Judge Advocate General Instruction 5800.7F (26 

Jun 2012). We have been informed the CA has not and does not intend to issue 

a letter in this case.
3

at his original court-martial;3 (2) he was prejudiced by the 

systematic exclusion of potential court-martial members on the 

basis of rank; (3) the military judge erred by failing to grant 

defense challenges for cause against two members; and (4) the 

military judge abused his discretion by admitting evidence in 

aggravation of stale prior non-judicial punishments (NJP).4

After careful consideration of the record of trial and the 

parties’ pleadings, we conclude that the affirmed findings and 

the approved sentence are correct in law and fact and that no 

error materially prejudicial to the substantial rights of the 

appellant and not corrected during the prior appellate review of 

this case was committed. Arts. 59(a) and 66(c), UCMJ.

Background

In September of 2009, the appellant engaged in sexual 

intercourse with Lance Corporal B, while he was married to 

another woman, resulting in the appellant’s plea of guilty to 

adultery. The appellant also stands convicted of attempted 

adultery with a second Marine, Private First Class H, and two 

specifications of indecent conduct for exceeding the scope of 

her consent to certain sexual acts in September 2010. 

Additional facts necessary for the resolution of each AOE are 

developed below.

 

Member Selection Process

The appellant argues that the military judge erred by 

denying the trial defense counsel’s request to dismiss the panel

because members were systematically excluded on the basis of 

rank. The CA in this case, Commanding General of 1st Marine 

Aircraft Wing (MAW), was located in Okinawa, Japan but the 

sentence rehearing was held at Marine Corps Recruit Depot (MCRD) 

Parris Island. The 1st MAW Staff Judge Advocate (SJA), 

Lieutenant Colonel (LtCol) H, asked the SJA from MCRD, Parris 

Island, Major (Maj) N, for assistance in securing members. 

LtCol H did not specify how members were to be selected. Maj N 

sent an email to tenant commands requesting availability of 

majors, lieutenant colonels, and enlisted personnel in the grade 

of staff sergeant and above. The CA was presented with 23 

questionnaires from Parris Island units, representing Marines in 

 

3 This AOE is rendered moot by our action in the decretal paragraph.

4 AOEs III and IV are raised pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982).
4

ranks 0-3 through O-5 and E-6 through E-9, from which the CA 

selected six officers and six enlisted to comprise General 

Court-Martial Convening Order (GCMCO) 2-13A.

After discovering that certain ranks had not been 

solicited, LtCol H requested additional questionnaires from 

Marines in the excluded ranks. The CA was given a package 

containing the original 23 members and 20 additional members’ 

questionnaires. The additional questionnaires included nine E4’s, ten E-5’s, and one warrant officer.5 The CA then approved 

GCMCO 2-13B, increasing the number of primary panel members from 

12 to 14 by removing a master sergeant and a staff sergeant and 

adding a chief warrant officer, two sergeants, and a corporal. 

Prior to the sentence rehearing, the appellant challenged 

the court-martial member selection process because certain ranks 

were systematically excluded. The military judge denied the 

defense motion on the basis that the CA had adequately remedied 

the problem by reviewing the additional members’ questionnaires 

before finalizing GCMCO 2-13B.

Whether a panel is properly selected is a matter of law 

that this court reviews de novo. United States v. Gooch, 69 

M.J. 353, 358 (C.A.A.F. 2011) (citing United States v. Dowty, 60 

M.J. 163, 171 (C.A.A.F. 2004)). We are bound by the findings of

the military judge unless they are clearly erroneous. United 

States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001). 

The CA must personally select members who are “best 

qualified for the duty by reason of age, education, training, 

experience, length of service, and judicial temperament.” Art. 

25(d)(2), UCMJ. The CA may rely on subordinates to nominate 

potential court members. Id. at 455. However, “[w]hen the 

request for nominations does improperly include or exclude 

certain members,” the court must “ensure that those actions do 

not taint the selection by the convening authority.” United 

States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999).

The burden is on the defense to show a systematic exclusion 

of qualified personnel from the selection process. United 

States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000) (citing 

Roland, 50 M.J. at 69). Once the defense meets their burden of 

production, “the Government must show by competent evidence that 

no impropriety occurred when selecting appellant’s court-martial 

members.” Id. (citation omitted). Under the circumstances of 

 

5 The military judge found there were no questionnaires from lieutenants 

because none were available for the court-martial. Appellate Exhibit XCVI at 

2.
5

this case, we conclude that the appellant has not met his 

burden. 

Once the CA recognized that members had been improperly 

excluded by rank, he reconsidered the panel and added members of 

ranks that had originally been excluded. The record is utterly 

devoid of any indication that the CA intended to exclude any 

rank or that the CA or his subordinates made any attempt to 

“stack” the court with higher-ranking Marines. Cf. United 

States v. Hilow, 32 M.J. 439, 442 (C.M.A. 1991) (finding members 

panel tainted when CA’s subordinates attempted to stack the 

panel even though the CA was unaware of the “stacking” attempt).

Under the specific circumstances of this case, we agree 

with the military judge that the CA “acted appropriately to cure 

a defect in the process” and “his remedial actions removed any 

possible taint from the proceedings.” Appellate Exhibit XCVI at 

6; see also RULE FOR COURTS-MARTIAL 505(c)(1)(A), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.) (“[b]efore the court-martial is 

assembled, the convening authority may change the members of the 

court-martial without showing cause”); Dowty, 60 M.J. at 175 

(finding error of screening the panel pool using the 

impermissible variable of volunteer was cured when the CA 

personally selected the panel and applied the criteria of 

Article 25(d)). Here, the CA personally selected all of the 

members based on the proper statutory criteria, and the court 

was ultimately properly convened.

Moreover, there is nothing in the record to suggest that 

the members who sat on the appellant’s court-martial were 

anything but fair and impartial. To the contrary, the members 

were the product of a rigorous voir dire process wherein the 

military judge granted three of six defense challenges for cause 

and removed another member upon both defense and government 

objection.6 On these facts, we are confident that there was no 

material prejudice to the appellant's substantial rights and 

that the appellant “received the statutorily qualified, fair, 

and impartial panel to which he was entitled.” United States v. 

Dowty, 57 M.J. 707, 715 (N.M.Ct.Crim.App. 2002), aff’d, 60 M.J. 

163 (C.A.A.F. 2004).

 

6 Of the three challenges for cause that were not granted, one member was 

struck after a peremptory challenge. 
6

Challenges for Cause

The appellant alleges the military judge abused his 

discretion when he denied the defense’s challenge for cause of 

Chief Warrant Officer-2 (CWO2) B and Sergeant (Sgt) L, who 

expressed during voir dire that they held negative feelings 

about adultery that were rooted in their religious beliefs. 

A member must be excused for cause whenever it appears that 

the member should not sit as a member in the interest of having 

the court-martial “free from substantial doubt as to legality, 

fairness, and impartiality.” R.C.M. 912(f)(1)(N).

A military judge’s decision on a challenge for cause is

reviewed for a “‘clear abuse of discretion.’” United States v.

Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006) (quoting United

States v. James, 61 M.J. 132, 138 (C.A.A.F. 2005)). As we

conduct our review, we recognize that “‘military judges must

liberally grant challenges for cause.’” James, 61 M.J. at 139

(quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.

2002)) (additional citation omitted).

We review issues of implied bias for an abuse of

discretion, but the objective nature of the inquiry affords less

deference to the military judge. United States v. Townsend, 65

M.J. 460, 463 (C.A.A.F. 2008) (citing United States v.

Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000) and United States v.

Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). However, “[a]

military judge who addresses implied bias by applying the

liberal grant mandate on the record will receive more deference

on review than one that does not.” United States v. Clay, 64

M.J. 274, 277 (C.A.A.F. 2007).

Notwithstanding a member’s disclaimer of bias, there is

implied bias “when most people in the same position would be

prejudiced.” Unites States v. Schlamer, 52 M.J. 80, 93

(C.A.A.F. 1999) (citation and internal quotation marks omitted). 

We view implied bias objectively “‘through the eyes of the

public, focusing on the appearance of fairness.’” Clay, 64 M.J.

at 276 (quoting United States v. Rome, 47 M.J. 467, 469

(C.A.A.F. 1998)).

We hold that the military judge did not abuse his 

discretion in denying the challenges of CWO2 B and Sgt L. 

During voir dire, CWO2 B and Sgt L both expressed they had

religious beliefs against adultery. Recognizing that adultery

is a crime under the UCMJ like any other, the military judge 
7

found that “just because somebody has a strong feeling contrary 

to adultery does not disqualify them from being a member.” 

Record at 1615. A moral or religious distaste for a crime does 

not per se require disqualification of a panel member. 

Schlamer, 52 M.J. at 92 (citing United States v. Bannwarth, 36 

M.J. 265, 268 (C.M.A. 1993)); cf. Clay, 64 M.J. at 278 (finding 

a member unfit when he said he would be “merciless” to someone 

he found guilty of raping a “young female,” and was equivocal 

when responding to questions about whether he could have an 

elastic view toward sentencing). 

In this case, we do not believe the appearance of the 

proceedings was rendered unfair by CWO2 B or Sgt L’s presence on 

the panel. CWO2 B stated that his beliefs did not impact his 

ability to sit as a member of the court-martial, he would 

consider the full range of punishments, and he would follow the 

military judge’s instructions when determining an appropriate 

sentence. Record at 1542-43, 1545. Sgt L noted, while his 

personal religious belief was that adultery was a sin, it was 

the same as any other sin. Id. at 1592. He also stated he 

would consider the entire range of punishment, including no 

punishment, and that he was capable of assessing a fair and just 

sentence and keeping an open mind as to what the sentence should 

be. Id. at 1592, 1596, 1600-01. 

Applying the liberal grant mandate, the military judge 

granted three of six defense challenges for cause and removed 

another member upon both defense and Government objection. The 

military judge’s statements on the record clearly demonstrate 

that he made a credibility determination as to the two members 

and found them to be able and willing to sentence the appellant 

fairly and in accordance with his instructions. We find no 

abuse of the military judge’s discretion. 

Sentencing Evidence in Aggravation

In his final AOE, the appellant avers that the military

judge erred by admitting over defense objection, NJP records

that were stale at the time of resentencing. 

“A military judge’s decision to admit or exclude evidence

is reviewed under an abuse of discretion standard.” United

States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing

United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000)). 

We will not overturn a military judge's evidentiary decision

unless that decision was arbitrary, fanciful, clearly

unreasonable, or clearly erroneous. United States v. Miller, 46
8

M.J. 63, 65 (C.A.A.F. 1997) (citing United States v. Travers, 25

M.J. 61, 62 (C.M.A. 1987)). Sentencing evidence is also subject

to the MILITARY RULE OF EVIDENCE 403, MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2012 ed.) balancing test. United States v. Manns, 54 M.J. 

164, 166 (C.A.A.F. 2000) (citing United States v. Rust, 41 M.J. 

472, 478 (C.A.A.F. 1995)). If the military judge conducts a 

proper balancing test under MIL. R. EVID. 403, the “ruling will 

not be overturned unless there is a ‘clear abuse of 

discretion.’” Id. (quoting United States v. Ruppel, 49 M.J. 

247, 250 (C.A.A.F. 1998)).

Here, the appellant committed the offenses for which he was

being sentenced in 2009 and 2010. The two NJPs concern

unrelated misconduct that occurred in 2009. Prosecution Exhibit

20. At the sentence rehearing, the defense argued that the

accused was not in his current enlistment, so his NJPs were

barred under Manual of the Judge Advocate General, Judge

Advocate General Instruction 5800.7F, § 0141 (26 Jun 2012)

(allowing NJPs as evidence in court-martials if they “reflect

offenses committed during the current enlistment or period of

service of the accused”). Record at 1684. 

The military judge found that the appellant was still in

his current enlistment due to the extension of his enlistment

for trial and the appellate process. Id. at 1688. He also

noted that the NJPs took place within two years of the date of

the offenses on the charge sheet. Additionally, the evidence

was properly admitted as evidence in aggravation at the

appellant’s first court-martial. Id. at 1685. Finally, the

military judge conducted a MIL. R. EVID. 403 analysis, finding

that the NJPs’ “probative value is high for the government, they

want to be able to show that this accused did not have a clean

record when he committed these offenses” and that such value was

not substantially outweighed by the danger of unfair prejudice

to the accused. Id. at 1689. He noted that the members were

entitled to see what type of Marine the appellant was at the

time of the offenses. Id. Under these circumstances, the 

military judge did not abuse his discretion when he admitted the 

appellant’s NJP records into evidence under R.C.M. 1001(b).

Conclusion

The convening authority having declined to order a 

rehearing as to the consensual sodomy offense, Charge III and 

its specification are dismissed. The remaining findings of 

guilty having previously been affirmed, only so much of the 

sentence as includes 308 days confinement, forfeiture of all pay 
9

and allowances, reduction to pay grade E-1, and a bad-conduct 

discharge is affirmed. 

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court