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

                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

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

       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

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CASTILLEJO—ARMY 20130507

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

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CASTILLEJO—ARMY 20130507

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
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        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).
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