### 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

NMC CA 201100248

GENERAL COURT

- MARTIAL

Sentence Adjudged: 2 1 November 201 3

. 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. Woo dworth,

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.

1 1 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

- ma rtial convicted the appellant,

pursuant to his plea, of one specification of adultery in2

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 convic ted 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,

1 20, 125, and 128, UCMJ, 1 0 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 (C A) 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 S tates 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Castellano , No. 201100248, 2012 CCA LEXIS 571, unpublished op.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,

se t as i de 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 appe llant 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 b een 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 membe rs 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

appell ant 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, r esulting 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 sex ual 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 1 st Marine

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

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

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

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

Island, Maj or (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

m ajors, l ieutenant c olonels, and enlisted personnel in the grade

of s taff s ergeant and above. The CA was presented with 23

questionnaires from Par r is 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 E

4’s, ten E

- 5’s, and one warrant officer. 5 The CA then approved

GCMCO 2

- 13B, increa sing 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 m ember 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 GCM CO 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 s ervice, 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 “e nsure 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. Unite d

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

m embers.” Id. (citation omitted). Under the circumstances of

5 The mi litary judge found t here were no questionnaires from lieutenants

because none were available for the court

- martial. A ppellate E xhibit XCV I 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

ra nks 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. Hil ow , 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 judg e that the CA “acted appropriately to cure

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

possible taint from the proceedings.” A ppellate E xhibit XCVI at

6 ; see also R ULE FOR C OURTS

- M ARTIAL 505(c)(1)(A)

, M ANUAL FOR C OURTS

M ARTIAL

, U NITED S TATES (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 vo lunteer 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 th ree 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 th e 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 h is

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 decisi on 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 “‘mi litary 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 obje ctive 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).

Notwithstandi ng 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 objective ly “‘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, t he military judge7

found that “just because somebody has a strong feel ing contrary

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

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

not per se require disqu alification 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 CWO 2 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. R ecord at 1542

- 43, 1545. Sgt L noted, while his

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

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 G overnment objection. The

military judge’s statements on the record c learly 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.

Se ntencing 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 tha t decision was arbitrary, fanciful, clearly

unreasonable, or clearly erroneous. United States v. Miller

, 468

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 M ILITARY R ULE OF E VIDENCE 403, M ANUAL FOR C OURTS

- M ARTIAL

, U NITED

S TATES (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 ba lancing test under M IL

. R. E VID . 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 M anual 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”). R ec ord 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 o f

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 M IL

. R. E VID

. 403 analysis, finding

that the NJP s’ “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 accus ed. 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 recor ds 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. T he remaining findings of

guilty having previously been a ffirmed, only so much of the

sentence as includes 308 days confinement, forfeiture of all pay9

and allowances, reduction to pay grade E

- 1, and a bad

- conduct

discharge is affirmed.

For the Court

R.H. TROIDL

Clerk of Court